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Case 1:16-cv-08722 Document 1 Filed 11/09/16 Page 1 of 15

David D. Lin (DL-3666)


david@iLawco.com
Justin Mercer (JM-1954)
justin@iLawco.com
LEWIS & LIN, LLC
45 Main Street, Suite 608
Brooklyn, NY 11201
Tel: (718) 243-9323
Fax: (718) 243-9326

Counsel for Plaintiff TheECheck.com, LLC

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK

THEECHECK.COM, LLC, Case No: 1:16-cv-8722


Plaintiff,
v.
COMPLAINT
NEMC FINANCIAL SERVICES
GROUP INC., CYBERBOX
TECHNOLOGY, INC., ELLINGTON
PICHARDO, PRESLEY MARTINEZ and
OJAY MARTINEZ-GIL,
Defendants.

Plaintiff THEECHECK.COM, LLC (“Plaintiff”), by and through its undersigned


counsel, for its complaint for damages and injunctive relief against defendants, NEMC
FINANCIAL SERVICES GROUP INC. (“New Era Financial”), CYBERBOX
TECHONOLOGY, INC. (“Cyberbox”, together with New Era Financial, “NEMC”),
ELLINGTON PICHARDO (“Pichardo”), PRESLEY MARTINEZ (“Presley”) and OJAY
MARTINEZ-GIL (“Ojay”, together with NEMC, Pichardo and Presley, “Defendants”),
alleges as follows:
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STATEMENT OF CASE
1. Plaintiff brings this action pursuant to the federal Lanham Act and New
York State common law for the malicious, willful and unlawful publication in this
District of false, misleading, disparaging and defamatory statements by Defendants
regarding Plaintiff and its electronic check and credit processing services.
2. Upon information and belief, Defendants own, operate and/or control a
competing business known as “NEMC Financial,” “Cyberbox Technology” and/or
“World Credit Express.”
3. Defendants were former merchant businesses and independent sales
affiliates with TheECheck.com who had an unceremonious departure from the company
caused by their rampant contractual breaches and fraud.
4. Defendants have also commenced and orchestrated a systematic pattern of
online harassment and disparagement via RipoffReport.com in an effort to usurp
Plaintiff’s current customers and dissuade Plaintiff’s prospective customers from doing
business with Plaintiff. Defendants’ disparaging statements remain active online and,
upon information and belief, viewed by thousands of visitors each day, and Defendants
continue to defame and injure Plaintiff with this false complaint. As a result of
Defendants’ misconduct, Plaintiff has been and continues to be substantially and
irreparably harmed.
PARTIES
5. Plaintiff TheECheck.com, LLC (“TheECheck.com”) is a limited liability
company organized and existing under the laws of the State of Ohio with its principal
place of business in the State of Ohio. None of TheECheck.com’s members are a
resident or citizen of the State of New York.
6. Upon information and belief, Defendant NEMC Financial Services Group
Inc. (“New Era Financial”) is a corporation organized under the laws of the State of

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Florida with a principal place of business in the State of New York at 16 Mountain View
Drive, Warwick, NY 10990.
7. Upon information and belief, Defendant Cyberbox Technology, Inc.
(“Cyberbox”) is a corporation organized under the laws of the State of Florida with a
principal place of business in the State of New York at 16 Mountain View Drive,
Warwick, NY 10990.
8. Upon information and belief, Defendant Ellington Pichardo is an
individual residing at 16 Mountain View Drive, Warwick, NY 10990.
9. Upon information and belief, Defendant Presley Martinez is an individual
residing in the State of New York.
10. Upon information and belief, Defendant Ojay Martinez-Gil is an
individual residing in the State of New York.
11. Upon information and belief, Defendants acted in concert or individually
in a covert scheme and/or conspiracy to harass and defame Plaintiff. Defendants
Pichardo, Presley and Ojay are the sole owners of NEMC. Through Pichardo’s, Presley’s
and Ojay’s operation and management of NEMC, they maintained control, oversight and
direction over the operation of NEMC’s online and social media postings. At all times
relevant hereto, Pichardo, Presley and Ojay participated in, assisted in, supervised,
guided, jointly authored and totally controlled NEMC in its decision making, financing
and other affairs. At all times relevant hereto, NEMC was the alter ego of Pichardo,
Presley and/or Ojay and was dominated, controlled and supervised by Pichardo, Presley
and Ojay to such a degree that it had no independent ability to function.
JURISDICTION AND VENUE
12. This Court has jurisdiction over the subject matter of this action pursuant
to the Lanham Act, 15 U.S.C. § 1051 et seq. and the laws of the State of New York. This
Court has subject matter jurisdiction, inter alia, pursuant to 28 U.S.C. §§ 1331, 1332,
1338, and 1367.

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13. This Court has pendent jurisdiction of the related state law claims asserted
in this action pursuant to 28 U.S.C. § 1367 because they involve the same parties, they
arise from the same operative facts common to the causes of action arising under the
federal claims, and because the exercise of pendent jurisdiction serves the interests of
judicial economy, convenience and fairness to the parties.
14. This Court has personal jurisdiction over Defendants because, upon
information and belief, Defendants reside and/or are located in the State of New York
and within this judicial district. Defendants further subjected themselves to this Court’s
jurisdiction by invoking the benefits and protections of this State in an attempt to cause
harm within the State of New York. Their false and defamatory statements, made to third
parties via RipoffReport.com, imputing false facts that injure Plaintiff’s business,
mentioned Defendant’s residence in New York. Upon information and belief, Defendants
did this so that the third parties would see Defendants’ false and defamatory statements
and connect them with Plaintiff, thus causing Plaintiff harm with its customers in New
York. Thus, personal jurisdiction over Defendants is also proper in New York pursuant to
New York Civil Practice Law and Rules § 302(a).
15. Venue is proper in this judicial district under 28 U.S.C. § 1391(b) and (c),
since some, or all, of the conduct that is the subject of this action occurred in this district.
FACTUAL ALLEGATIONS
16. TheECheck.com is engaged in the business of commercial, electronic
check and credit processing services for high risk merchants.
17. TheECheck.com is a leading worldwide market provider of secure
transaction processing solutions for business-to-consumer and business-to-business
electronic commerce. TheECheck.com provides turnkey Internet billing solutions to
sellers of web site content and on-line vendors of services and products that add
exceptional value to both the user and the merchant. TheECheck.com’s focus is on

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processing payments on behalf of vendors and to help them originate other means to
generate additional online revenue.
18. TheECheck.com supports its customers by providing global sales
management, risk & compliance, tech support, consumer verification services, and
accounting platforms.
19. TheECheck.com’s flagship service is its electronic check and credit
processing services for businesses, offering real time credit card payment processing,
premium online payment security, and worldwide payment acceptance abilities.
20. TheECheck.com’s services and employees have received top industry
certifications and is a member of the Electronic Transactions Association (“ETA”), the
leading trade association for the payments industry, representing nearly 550 companies
worldwide involved in electronic transaction processing products and services.
21. TheECheck.com has also received an “A+” rating from the Better
Business Bureau.
Defendants’ Wrongful Conduct
22. Defendant NEMC is a telemarketing business operating in New York and
Florida, and is controlled and dominated by its single group of owners, Defendants
Pichardo, Presley and Ojay.
23. Upon information and belief, NEMC owns, operates and/or controls
competing credit processing services known as “NEMC”, “NEMC Financial”, and/or
“World Credit Express.”
24. Upon information and belief, Defendant Cyberbox is a telemarketing
business and merchant payment processes business operating in New York, and is
controlled and dominated by its single group of owners, Defendants Pichardo, Presley
and Ojay.
25. Beginning in or around 2013 and continuing to the present, in an
intentional effort to divert business away from Plaintiff and toward Defendants, and to

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cause injury to Plaintiff, Defendants began to contact Plaintiff’s potential customers in an


effort to dissuade Plaintiff’s potential customers from doing business with Plaintiff.
26. In particular, Defendants have posted taunting material and defamatory
statements, authored by Defendants Pichardo, Presley and/or Ojay, about Plaintiff and
Plaintiff’s services on various forums, blogs and websites across the Internet.
27. Defendants, writing under the name “NEMC – New York, New York,”
authored a harassing and defamatory complaint on RipoffReport.com, purportedly to
convent factual information about Plaintiff and its services, but instead which asserted
outright falsehoods. See Exhibit A. Among other claims, the Ripoff Report complaint
accuses Plaintiff of unlawfully detaining and/or stealing Defendants’ funds, claims
Plaintiff committed fraudulent acts to “intimidate people,” and calls Plaintiff a “crook”
and “ripoff artists.”
28. Each of those statements made in the Ripoff Report are false and
defamatory.
29. Defendants knew, or should have known, that the statements were false
when made. The above statements are knowingly and materially false, and were made to
defame Plaintiff and divert Plaintiff’s customers to Defendants.
30. Upon information and belief, the Ripoff Report contains additional false
and defamatory comments solicited by the false and defamatory statements made by
Defendants. Indeed, because those comments are also signed “NEMC,” Plaintiff believes
that Defendants added these false comments in such a fashion that no reasonable person
would believe that the statements made therein were opinion, but rather statements of fact
about Plaintiff and Plaintiff’s services.
31. In addition to the Ripoff Report being available online and accessible to
millions of Plaintiff’s current and potential customers, upon information and belief,
Defendants published the content of the Ripoff Report to hundreds of third parties,

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including individuals and entities in which Plaintiff maintains existing contractual


relationships.
32. Upon information and belief, Defendants engaged in the above conduct in
order to induce Plaintiff’s customers to stop doing business with Plaintiff.
33. Upon information and belief, Defendants Pichardo, Presley and/or Ojay
have carried out the aforesaid acts at the direction of, on behalf of, and with full
knowledge of NEMC—for their own personal benefit as sole owners of NEMC.
34. This complaint by Defendants is egregious because it represents a pattern
of making false statements about Plaintiff over a period of multiple years.
35. Defendants’ conduct is willful and malicious.
36. Defendants’ unlawful conduct is causing and will continue to cause harm
to Plaintiff and its services.
37. Plaintiff has no adequate remedy at law for some of the relief requested
herein below.
Defendants’ Contractual Breaches
38. As stated above, Defendants are disgruntled ex-merchant businesses and
independent sales affiliates, who fabricated the claims in the RipoffReport, upon
information and belief, to obfuscate their own fraudulent practices with TheECheck.com.
39. Before Plaintiff discovered that Defendants were the driving forces behind
the authoring of the lies and reputational/character assaults above, on or about April 2,
2012, Defendant Pichardo executed an Independent Sales Office Agreement on behalf of
Defendant Cyberbox with Plaintiff (the “ISO Agreement”). A copy of the ISO
Agreement is annexed hereto as Exhibit B.
40. Pursuant to the ISO Agreement, and in exchange for a fee, Defendant
Cyberbox was to market TheECheck.com’s electronic payment and collection services to
prospective merchants and refer said customers to Plaintiff. See Exhibit B.

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41. Under the ISO Agreement, Defendant Cyberbox agreed to confidentiality


and non-compete/non-circumvention clauses with TheECheck.com. See Exhibit B.
Cyberbox agreed not to come with TheECheck.com or interfere with Plaintiff’s business
or contact Plaintiff’s customers or merchants. Cyberbox further agreed to keep
confidential and not disclose certain customer and proprietary information.
42. During all relevant times, Plaintiff paid Defendants for its services under
the ISO Agreement.
43. As stated above, Defendants began a smear campaign intended to drive
Plaintiff out of business. Upon information and belief, Defendants began steering
Plaintiff’s customers (some of whom Defendants may have been privy to solely due to
the ISO Agreement) to Defendants’ competing business, “NEMC Financial” and/or
“World Credit Express” by making false, disparaging and defamatory statements
concerning Plaintiff to third parties on the Internet via various review sites, such as
RipoffReport.com. See Exhibit A.
44. Defendants were well aware that such statements were false when made,
as they were privy to Plaintiff’s business practices as a sales affiliate and referral agent.
45. Upon information and belief, Defendants retained and disseminated other
confidential information to both Plaintiff’s merchants and the public.
46. Around the same time Defendant Pichardo executed the ISO Agreement
on behalf of Cyberbox, he also executed a Merchant Services Agreement on behalf of
NEMC on or around April 20, 2012 (the “MSA”). A copy of the MSA is annexed hereto
as Exhibit C.
47. According to the terms of the MSA, Defendant NEMC became indebted to
Plaintiff for over $100,000 at various times for Plaintiff’s services and or fees set forth
therein.
48. Defendants thereafter defaulted in the payment obligations due on and
after July 30, 2012.

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49. As of the date of this complaint, Defendants are currently indebted to


Plaintiff in the amount of $60,000.
50. To date, Defendants have not remitted any payments due under the MSA
to Plaintiff.

FIRST CLAIM FOR RELIEF


VIOLATION OF THE LANHAM ACT
UNDER 15 U.S.C. § 1125(a)(1)(B)
51. Plaintiff repeats and incorporates herein by reference each and every one
of the allegations contained in paragraphs 1 through 50, with the same force and effect as
if set forth in detail herein again.
52. Defendants’ publication of false and misleading statements about Plaintiff
and Plaintiff’s services constitutes false advertising in violation of 15 U.S.C. §
1125(a)(1)(B).
53. Defendants’ publication of false and misleading statements about Plaintiff
and Plaintiff’s services is likely to deceive consumers as to the nature and quality of
Plaintiff and Plaintiff’s services.
54. As a direct and proximate result of Defendants’ unlawful acts, Plaintiff has
suffered and will continue to suffer significant monetary and reputational injury in
amounts to be determined at trial.

SECOND CLAIM FOR RELIEF


TRADE LIBEL AND COMMERICAL DISPARAGEMENT
55. Plaintiff repeats and incorporates herein by reference each and every one
of the allegations contained in paragraphs 1 through 50, with the same force and effect as
if set forth in detail herein again.
56. Defendants have intentionally made knowingly false statements of fact
about Plaintiff and Plaintiff’s services on the Ripoff Report.

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57. These statements were made maliciously and willfully, and were intended
to cause harm to Plaintiff’s business and reputation.
58. The aforementioned statements were false when made and Defendants
knew or should have known that the statements were false when made.
59. These statements were made maliciously and willfully, and were intended
to cause harm to Plaintiff’s reputation. The statements were made with reckless disregard
for their truth or falsity or with knowledge of their falsity and with wanton and willful
disregard of the reputation and rights of Plaintiff.
60. The aforementioned statements where made of and concerning Plaintiff,
and were so understood by those who read Defendants’ publication of them.
61. Among other statements, Defendants falsely accused Plaintiff of: stealing
money via Plaintiff’s payment processing services, unlawfully holding Defendants’
funds, being a perpetrator of a “ripoff,” “claims Plaintiff committed fraudulent acts to
“intimidate people,” and calls Plaintiff a “crook.”
62. These statements constitute injurious falsehoods and trade libel, which
impugn the integrity of Plaintiff and the quality of Plaintiff’s payment processing
services. These statements were expressly directed at Plaintiff.
63. These statements were false, and were published to third parties in this
district and across the Internet—specifically on the Ripoff Report.com.
64. Defendants have no privilege to assert their false and disparaging
statements.
65. As a result of Defendants’ acts, Plaintiff has suffered irreparable damage
to its reputation and further special damages in the form of lost sales and profits, in an
amount to be determined at trial.
66. As a result of the willful and malicious nature of the defamation, Plaintiffs
are entitled to punitive damages.

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THIRD CLAIM FOR RELIEF


UNFAIR COMPETITION
67. Plaintiff repeats and incorporates herein by reference each and every one
of the allegations contained in paragraphs 1 through 50, with the same force and effect as
if set forth in detail herein again.
68. Defendants authored and is using the Ripoff Report to divert users
searching for Plaintiff to Defendants’ competing business, “NEMC.”
69. Defendants posted false and defamatory complaints about Plaintiff online.
70. Upon information and belief, Defendants knew that Google displays
RipoffReport.com search results to users searching for the companies named in those
titles and addresses, which results are highly ranked, and that such a false complaint
would harm Plaintiff’s reputation and business in this district and elsewhere.
71. Upon information and belief, by posting the complaint online with
“NEMC” in the byline, Defendants intended to use their defamatory statements as a
means to generate business by turning customers away from Plaintiff, and redirecting
them to Defendants.
72. These acts and others stated above constitute a pattern of common law
unfair competition, entitling Plaintiff to recovery of compensatory and punitive damages,
in an amount to be proved at trial, including compensation for Plaintiff’s time, effort and
attorney’s fees.

FOURTH CLAIM FOR RELIEF


TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS AND
PROSPECTIVE CONTRACTUAL RELATIONS
73. Plaintiff repeats and incorporates herein by reference each and every one
of the allegations contained in paragraphs 1 through 50, with the same force and effect as
if set forth in detail herein again.
74. Plaintiff had existing contracts with its customers and reasonably expected
that its contractual relationships with its customers would continue into the future.

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75. Defendants knew of Plaintiff’s contracts. Indeed, Defendants falsely


purport to have been in contract with Plaintiff.
76. By the wrongful conduct described above, Defendants internationally and
improperly interfered with Plaintiff’s contracts with its customers and did so with the
intent and purpose of damaging Plaintiff’s business.
77. Defendants’ interference caused Plaintiff’s customers confusion and to
cease doing business with Plaintiff.
78. As a result of Defendants’ actions, Plaintiff has been and continues to be
damaged in an amount to be determined at trial.
79. Plaintiff has also suffered and will continue to suffer irreparable harm in
the form of damage to its reputation as a result of Defendants’ conduct described herein.
80. While an award of damages may be adequate to compensate Plaintiff for
the loss of particular contracts or customers, an award of damages will not be adequate to
compensate Plaintiff for the damage to its reputation caused by Defendants. Plaintiff has
suffered and will continue to suffer irreparable harm unless injunctive relief is granted.

FIFTH CLAIM FOR RELIEF


BREACH OF CONTRACT
81. Plaintiff repeats and incorporates herein by reference each and every one
of the allegations contained in paragraphs 1 through 50, with the same force and effect as
if set forth in detail herein again.
82. At all times relevant hereto, the MSA was a valid, binding and enforceable
contract between Plaintiff and Defendants.
83. Defendants contracted with Plaintiff and became indebted to Plaintiff.
84. At all times material to the instant proceeding, Plaintiff fully performed its
obligations under the contract.
85. Pursuant to the terms of the MSA, Defendants became indebted to
Plaintiff for over $100,000, $60,000 of which have, to date, have not repaid.

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86. Defendants have materially breached the parties’ agreement by not


upholding their obligations and failing to repay Plaintiff.
87. As a result of Defendants’ breach, Plaintiff is entitled to judgment against
the Defendants jointly and severally in the amount of sixty thousand dollars ($60,000.00),
plus interest, costs and plaintiff’s attorneys’ fees.

SIXTH CLAIM FOR RELIEF


UNJUST ENRICHMENT
88. Plaintiff repeats and incorporates herein by reference each and every one
of the allegations contained in paragraphs 1 through 50, with the same force and effect as
if set forth in detail herein again.
89. Defendants benefited from the monies advanced to them by Plaintiff, for
which Defendants did not adequately repay Plaintiff or provide value.
90. Under principles of equity and good conscience, Plaintiff is entitled to full
restitution of $60,000.00, plus interest, constituting the value of the monies that
Defendants unjustly derived from Plaintiff and Defendants’ request.

SEVENTH CLAIM FOR RELIEF


BREACH OF NON-SOLICITATION AGREEMENT
91. Plaintiff repeats and incorporates herein by reference each and every one
of the allegations contained in paragraphs 1 through 50, with the same force and effect as
if set forth in detail herein again.
92. Pursuant to the ISO Agreement, Defendants agreed to not compete with
Plaintiff or interfere with Plaintiff’s business or contact Plaintiff’s customers.
93. By the wrongful conduct described above, Defendants internationally and
improperly interfered with Plaintiff’s contracts with its customers and did so with the
intent and purpose of damaging Plaintiff’s business.
94. As a result of Defendants’ acts, Plaintiff has suffered damages in an
amount to be determined at trial.

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PRAYER FOR RELIEF


WHEREFORE, Plaintiff respectfully requests that the Court:
1. Enter a judgment declaring that Defendants’ conduct violates 15 U.S.C. §
1125(a);
2. Enter a judgment declaring that Defendants’ conduct constitutes trade libel
and/or commercial disparagement under the laws of the State of New
York;
3. Enter a judgment declaring that Defendants’ conduct constitutes unfair
competition under the laws of the State of New York;
4. Enter a judgment declaring that Defendants’ conduct constitutes tortious
interference;
5. Enter a judgment in the amount of $60,000 with interest thereon from July
30, 2012;
6. Award Plaintiff compensatory damages according to proof at trial but in
an amount not less than $1,000,000.00;
7. Award Plaintiff punitive damages pursuant to the Lanham Act and the
common law, due to Defendants’ willful and wanton behavior;
8. Enter a temporary and permanent order, enjoining Defendants from
publishing the false advertising statements identified above in relation to
Plaintiff and directing Defendant and its respective agents, servants,
employees, successors and assigns, and all other persons acting in concert
with or in conspiracy with or affiliated with Defendant, to remove, delete,
or otherwise disable such posts;
9. Enter a temporary and permanent order, enjoining Defendants from
publishing the statements constituting trade libel and/or commercial

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disparagement identified above in relation to Plaintiff and directing


Defendant and its respective agents, servants, employees, successors and
assigns, and all other persons acting in concert with or in conspiracy with
or affiliated with Defendant, to remove, delete, or otherwise disable such
posts;
10. Award Plaintiff reasonable attorney’s fees, costs and disbursements in this
civil action; and
11. Enter such other and further relief to which Plaintiff may be entitled as a
matter of law or equity, or which the Court determines to be just and
proper.

Dated: Brooklyn, New York


November 9, 2016

LEWIS & LIN, LLC

By: _/s/ Justin Mercer________


David D. Lin, Esq. (DL-3666)
Justin Mercer, Esq. (JM-1954)
45 Main Street, Suite 608
Brooklyn, NY 11201
Tel: (718) 243-9323
Fax: (718) 243-9326
Email: david@iLawco.com
justin@iLawco.com

Counsel for Plaintiff

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