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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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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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