Case 8:16-cv-00002-AG-JCG Document 1 Filed 01/04/16 Page 1 of 16 Page ID #:1
MLG AUTOMOTIVE LAW, APLC
A Professional Law Corporation
Jonathan A. Michaels, Esq. Bar No. 180455
Kathryn J. Harvey, Esq. State Bar No. 241029
Kianna C. Parviz, Esq. State Bar No. 293568
2801 W. Coast Highway, Suite 370
Newport Beach, CA 92663
Telephone: (949) 581-6900
Facsimile: (949) 581-6908
(jmichaels@mlgautomotivelaw.com)
(kharvey@ mlgautomotivelaw.com)
(kparviz@ mlgautomotivelaw.com)
Attorneys for Plaintiff Henrik Fisker
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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HENRIK FISKER, an individual,
Case No.
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Plaintiff,
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COMPLAINT FOR:
vs.
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ASTON MARTIN LAGONDA
LIMITED, a United Kingdom
corporation; ASTON MARTIN
LAGONDA OF NORTH AMERICA,
INC., a Connecticut corporation;
ANDY PALMER, an individual;
SIMON SPROULE, an individual;
MAREK REICHMAN, an individual;
and DOES 1 to 25, inclusive,
1. CIVIL EXTORTION
2. DECLARATORY RELIEF
[JURY TRIAL DEMANDED]
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Defendants.
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COMPLAINT
Case 8:16-cv-00002-AG-JCG Document 1 Filed 01/04/16 Page 2 of 16 Page ID #:2
JURISDICTION AND VENUE
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A.
Subject Matter Jurisdiction.
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The Court has jurisdiction over the subject matter presented by this
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Complaint because it involves a determination of federal trademark rights, and a
declaration by the Court under the Declaratory Judgment Act, 28 USC 2201.
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B.
Parties and Personal Jurisdiction.
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Plaintiff Henrik Fisker is a California resident, giving the Court
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personal jurisdiction over him.
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3.
Defendant Aston Martin Lagonda Limited is a United Kingdom
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corporation, with its principle place of business in the United Kingdom. The
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Court has personal jurisdiction over Aston Martin Lagonda Limited, because it
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engages in significant business throughout the State of California, providing
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California with general jurisdiction.
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Defendant Aston Martin Lagonda of North America, Inc. is a
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Connecticut corporation, with its principle place of business in Irvine, California.
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The Court has personal jurisdiction over Aston Martin Lagonda of North America,
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Inc., because it engages in significant business throughout the State of California,
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providing California with general jurisdiction.
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Defendant Andy Palmer is an individual who is the Global CEO of
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Aston Martin Lagonda Limited, and is believed to reside in the United Kingdom.
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The Court has personal jurisdiction over Andy Palme because he regularly visits
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COMPLAINT
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California, as Global CEO of Aston Martin Lagonda Limited. Since California is
one of the biggest markets for Aston Martin, and Aston Martin Lagonda of North
America, Inc. is based in California, Palmer regularly travels here for work.
Moreover, Palmer visits California to attend car shows, customer events and
dealer meetings.
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6.
Defendant Simon Sproule is an individual who is the Director of
Global Marketing Communications of Aston Martin Lagonda Limited, and is
believed to reside in the United Kingdom. The Court has personal jurisdiction
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over Simon Sproule because he regularly visits California, as Director of Global
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Marketing Communications of Aston Martin Lagonda Limited. Since California
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is one of the biggest markets for Aston Martin, and Aston Martin Lagonda of
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North America, Inc. is based in California, Sproule regularly travels here for
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work. Moreover, Sproule visits California to attend car shows, customer events,
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and dealer meetings.
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Defendant Marek Reichman is an individual who is the Chief
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Creative Officer and Design Director of Aston Martin Lagonda Limited, and is
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believed to reside in the United Kingdom. The Court has personal jurisdiction
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over Marek Reichman because he regularly visits California, as Chief Creative
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Officer and Design Director of Aston Martin Lagonda Limited. Since California
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is one of the biggest markets for Aston Martin, and Aston Martin Lagonda of
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North America, Inc. is based in California, Reichman regularly travels here for
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work.
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events, and dealer meetings.
Moreover, Reichman visits California to attend car shows, customer
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COMPLAINT
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C.
Venue.
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Venue in this District is proper under 28 U.S.C. 1391(b) because all
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Defendants are subject to the Courts personal jurisdiction with respect to this
action, and because the events giving rise to this dispute occurred in this judicial
district.
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FACTUAL ALLEGATIONS
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9.
Aston Martin is a low-volume sports car manufacturer established in
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the United Kingdom in 1913. In its current form, it operates as Defendant Aston
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Martin Lagonda Limited, a United Kingdom corporation located in Warwick,
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United Kingdom. The company sells its vehicles in the United States through
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Defendant Aston Martin Lagonda of North America, Inc., a Connecticut
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corporation located in Irvine, California.
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Although the company has been in existence for 103 years, it has
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struggled mightily throughout its history with low sales numbers, financial
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distress, seven bankruptcies and fleeting ownership. As the BBC News noted in
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March 2015, Aston Martin has always relied on someone stepping in and
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injecting some more cash and saving it. In its entire corporate history, the
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company has sold a mere 70,000 vehicles. By way of comparison, Porsche
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another low volume sports car manufacturer currently sells 50,000 vehicles per
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year.
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In the 1990s, Aston Martins sales were dismal.
In 1991, the
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company sold a total of 42 vehicles worldwide, increasing to approximately 400
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vehicles per year in the mid-1990s. In response to its sales and marketing crisis,
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COMPLAINT
Case 8:16-cv-00002-AG-JCG Document 1 Filed 01/04/16 Page 5 of 16 Page ID #:5
the company hired world-renowned vehicle designer Plaintiff Henrik Fisker to
revamp the companys vehicle lineup. Fisker had previously held the position of
President of BMW Designworks, BMWs North America Design and
Development Center. Fisker gained fame in the automotive industry when he
designed the BMW Z8, one of BMWs most critically acclaimed vehicles and the
car featured in the James Bond movie The World Is Not Enough. To entice
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Fisker to join the company, Aston Martin named Fisker Director of Design and
gave him a seat on the companys board of directors in the United Kingdom.
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12.
While at Aston Martin, Fisker designed the Aston Martin V8
Vantage, and was responsible for the production launch design of the Aston
Martin DB9.
The cars, which were put into production in 2005 and 2006,
respectively, were largely responsible for saving the company and reestablishing
market relevance. By 2006 (when both cars were in production), Aston Martins
annual global sales had grown to 7,052 a 1,663 percent increase over the
stagnated 400 units per year in the mid-1990s. By 2007, the companys annual
global sales reached 7,393 vehicles.
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After his design work on the V8 Vantage and the DB9, Fisker left
Aston Martin to pursue his own entrepreneurial projects. In the late 2000s, he
launched Fisker Automotive, one of the worlds first companies to manufacture
alternative fuel vehicles. While captaining Fisker Automotive, he raised over a
billion dollars for the company and designed the Fisker Karma, an innovative car
that won numerous awards, including Time Magazines The 50 Best Inventions
of 2011.
A Fisker Karma vehicle is housed in the world-famous Peterson
Automotive Museum, as a display of the vehicles innovativeness. In 2013,
Fisker resigned from Fisker Automotive, as the company experienced internal
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COMPLAINT
Case 8:16-cv-00002-AG-JCG Document 1 Filed 01/04/16 Page 6 of 16 Page ID #:6
stress when its sole battery supplier, A123, filed for bankruptcy, leaving the
company without an ability to produce its cars.
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Henrik Fisker is now engaged in a variety of automotive projects in
the United States that leverage his ability to design world-class cars, as well as run
a billion-dollar company. The focus of Fiskers new projects has been on high-
performance luxury sports cars that cater to a celebrated clientele.
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Having witnessed firsthand Fiskers ability to grow a sports car
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brand, Aston Martin is greatly threatened by Fiskers return to the sports car
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market.
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following of elite automobile purchasers, Fisker has the ability to sway
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Aston Martin is keenly aware that, as a public figure with a large
purchasers, including potential purchasers of Aston Martin vehicles, to any sports
car he is involved in designing and marketing.
Aston Martins concern is
exacerbated by the fact that since Fisker left Aston Martin, the company has failed
to introduce new products that have garnered anywhere near the same level of
attention the V8 Vantage and the DB9 did a decade ago. In fact, the V8 Vantage
designed by Fisker remains the companys best selling vehicle. Yet, because the
company has failed to introduce new and exciting products, Aston Martins sales
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are again falling precipitously; in 2014 the company sold 3,661 vehicles globally
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a 50 percent decline from the companys high water mark of 2007.
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What is worse, Aston Martins decline in sales continued indeed,
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accelerated as the global economy recovered from the Great Recession. From
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2008 (the height of the recession) to 2014 (the last full year of sales reporting), the
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United States market saw a 25% increase in vehicle sales. In that same time
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period, and without having Fisker at its side, Aston Martins sales decreased 44
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COMPLAINT
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percent. Referring to Porsche for comparison again, from 2008 to 2014 the
German automaker saw an 81 percent increase in sales.
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Aston Martins spiraling vehicles sales have led to severe financial
stress. As the Financial Times reported in October 2015, The Warwickshire
manufacturer posted a pre-tax loss of 72m [$106 million] for 2014, almost triple
the 25m [$37 million] deficit the year before. According to Reuters, 2014 was
the fourth consecutive year [Aston Martin] has failed to post a profit, a rather
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astonishing fact given that the luxury sports car market is currently exploding. As
the Financial Times aptly noted, Astons well-documented decline has come
despite a boom in global luxury car sales.
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Sales figures for 2015 are not yet available, but signs indicate that the
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company continues to experience significant losses. The Telegraph reported in
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October 2015 that Aston Martin is planning to cut almost 300 jobs [14 percent of
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the companys workforce] as losses at its parent company more than doubled.
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The Financial Times stated that the privately-held company has debts in excess of
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$600 million, and is financing its losses through additional investment from
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shareholders.
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November 2015 by the well-respected Societe Generale Private Bank. As Societe
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Generale stated, We maintain a DETERIORATE rating view on [Aston Martin]
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following its poor 9M15 results We maintain our view that the companys
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huge capex program (~GBP 500mn during 201317) will result in cash burn and
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further worsen leverage metrics in the near-to-medium term.
All of this was followed by a deteriorate credit rating in
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COMPLAINT
Case 8:16-cv-00002-AG-JCG Document 1 Filed 01/04/16 Page 8 of 16 Page ID #:8
19.
Further denigrating its market relevance, Aston Martin prides itself as
being uniquely British. However, the companys fall into financial ruin has all but
stripped the United Kingdom of any meaningful ownership in the company. As
reported by Societe Generale, Aston Martin is owned 47 percent by the Kuwait-
based investment firm Dar Company, and 37.5 percent by the Italy-based private
equity fund Investindustrial.
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20.
In an effort to protect itself from further market erosion, Aston
Martin and the three individuals responsible for running it Defendants Andy
Palmer (Global CEO), Simon Sproule (Director of Global Marketing
Communications) and Marek Reichman (Chief Creative Officer and Design
Director) have conspired and devised a scheme to stomp out Henrik Fiskers
competitive presence in the luxury sports car industry.
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Over the past year, Aston Martin has sent Fisker threatening letters,
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and its executives have made disparaging comments in the press, all in an effort to
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shun him from the industry. Many journalists noted that Aston Martins action
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have jeopardized Henrik Fiskers resurgence to the luxury sports car industry. As
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Automotive News, the leading automotive industry paper, commented, Aston
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Martin has put the brakes on Henrik Fiskers return to the auto industry.
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Henrik Fisker has now designed a new American sports car, branded
the Force 1, that is being launched at the January 2016 Detroit Auto Show. The
Detroit Auto Show is the largest automotive show in the world, setting forth the
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tone for the coming years car sales. In December 2015, Fisker introduced a
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single top view teaser sketch of the vehicle, a copy of which attached hereto as
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COMPLAINT
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Exhibit A, and invited the media to attend the vehicles launch. The response to
the Force 1 has been spectacular, receiving attention from over 50 media outlets.
As UKs Daily Mail stated, the Force 1 is one of the nine cars to look out for
at the Detroit motor show in January.
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Aston Martin, with its aging product line and inability to finance and
produce new and exciting vehicles, is extremely threatened by the reception the
Force 1 has received. Positioned as an American supercar with 745 horsepower
and a sales price of just under $300,000, the Force 1 is a direct competitor of
many Aston Martin products.
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Unable to respond competitively in the marketplace, on December
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23, 2015, just two days before Christmas, Aston Martin sent Fisker a letter
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demanding that he not launch the Force 1 vehicle at the Detroit Auto Show, or
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make design changes to the vehicle before its launch. Aston Martin made the
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demand under the threat of suing him if he failed to comply with Aston Martins
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outrageous demands. A copy of Aston Martins December 23, 2015 letter is
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attached as Exhibit B.
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Based solely on the teaser top view sketch [Ex. A], Aston Martin is
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claiming that the Force 1 is too similar to the Aston Martin DB10, a car that it
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made for the recent James Bond movie, but will not be producing. However, the
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company is aware that its claim is pure nonsense, as it admits in its letter, We do
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not know what the final version of Fiskers Force 1 will look like. [Ex. B]. The
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truth is that Aston Martin and the three individuals who run it (Defendants Andy
Palmer, Simon Sproule and Marek Reichman) are so concerned that Fisker will be
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COMPLAINT
Case 8:16-cv-00002-AG-JCG Document 1 Filed 01/04/16 Page 10 of 16 Page ID #:10
competing with them in the marketplace, they are attempting to extort him into
submission.
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As will be displayed at the Detroit Auto Show, the Force 1 is not
based on an Aston Martin chassis, is not in any way connected to Aston Martin,
and is completely distinct from any Aston Martin vehicle that has ever been made,
including the DB10. As reflected in Exhibit C, the Force 1 has a round wind
screen, the DB10 has a flatter wind screen; the Force 1 has a square roof with
parallel lines, the DB10 has a tapered roof that narrows toward the rear; the Force
1 has a long rear, the DB10 has a short rear; and the Force 1 has a Z side line, the
DB10 has a straight side line.
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In fact, there are several automakers that produce cars similar to
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Aston Martins, but like the Force 1, are distinct in their application. As shown in
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Exhibit D, the Chevrolet Corvette and the Jaguar F-Type both have front engine
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proportions with long hood and pushed out wheels, and both bear a resemblance
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to the Aston Martin, but are separate and distinct vehicles, with their own specific
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trade dress. The design elements of the Aston Martin, the Corvette, the F-Type
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and the Force 1 are the cornerstone of front engine sports car design, dating back
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to the golden era of the 1960s. Aston Martin does not own the market for luxury
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sports cars, or traditional front engine sports car proportions.
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Nevertheless, Aston Martin and Defendants Andy Palmer, Simon
Sproule and Marek Reichman, the three individuals who for all intents and
purposes run the company, are attempting to extort Fisker out of the industry,
threatening to declare to the world that he is infringing on its trademarks and
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COMPLAINT
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stealing the companys designs a claim that they know is without merit, as
they admit they have no idea what the car will look like. [Ex. B]. These extortion
tactics threaten to inflict extreme and irreparable damage on the individual who
made car design fashionable. Fisker has built his credibility on his design skills,
being referred to repeatedly in the press as a world renowned designer. Such a
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baseless claim by Aston Martin would subject him to public humiliation,
embarrassment in the industry and significant financial losses. It would also leave
scores of skilled American workers who are currently slotted to build the Force 1
vehicles unemployed.
However, the Defendants are unconcerned with the
consequences of their actions, so long as it silences the famed designer. Saddled
with a company that is teetering on the brink of insolvency, Andy Palmer, Simon
Sproule and Marek Reichman are desperate to stomp out Fisker as a legitimate
competitor, at all costs.
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Aston Martin and Defendants Palmer, Sproule and Reichman are
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well-aware of how important the Detroit Auto Show is to the industry and to a
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prospective cars launch. They are also keenly aware that extorting Fisker and
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forcing him to pull out of the show would effectively kill the car, as well as his
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reputation. The goal of the Defendants is to gain market share for Aston Martin,
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and to quell competition from the person who revived the company a decade ago.
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As a result of the Defendants improper and tortious attempt to
exclude Henrik Fisker from the luxury sports car industry, Henrik Fisker has been
damaged in excess of $100 million.
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COMPLAINT
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COUNT ONE
CIVIL EXTORTION
(By Plaintiff Against all Defendants)
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31.
Plaintiff repeats every allegation contained in the paragraphs above
and incorporates such allegations herein by reference.
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32.
Defendants Aston Martin Lagonda Limited, Aston Martin Lagonda
of North America, Inc., Andy Palmer, Simon Sproule and Marek Reichman are
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engaged in an active plan to extort Plaintiff Henrik Fisker, and to eliminate him as
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a competitor in the luxury sports car industry.
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33.
As reflected in the December 23, 2015 letter [Ex. B], the Defendants
are demanding that the Plaintiff not launch the Force 1 vehicle at the 2016 Detroit
Auto Show, or make design changes to the vehicle prior to its launch.
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34.
The Defendants are employing the wrongful use of force or fear to
achieve their goals. They are making their demand under the threat of subjecting
the Plaintiff to vexatious litigation, public humiliation, embarrassment in the
industry and significant financial losses.
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35.
The Defendants are aware that their demand has no basis in fact or
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law, as it is based solely on a single top view teaser sketch of the vehicle that
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was given to the media, and they admit that they have no idea what the Force 1
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vehicle will look like. [Ex. B].
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COMPLAINT
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36.
The Defendants are making the extortion threats to the Plaintiff in an
effort to eliminate legitimate competition in the luxury sports car market, and to
gain property and market share to which they are not legally entitled.
Defendants are motivated by the substantial financial losses the company is
experiencing, which threaten its continued viability.
The
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37.
The Defendants actions violate Californias laws on extortion,
including California Penal Code 518, et seq.
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38.
As a direct and proximate result of the Defendants extortion, the
Plaintiff has been damaged in excess of $100 million.
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39.
The conduct of Defendants is fraudulent, malicious and oppressive,
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such that Plaintiff is entitled to an award of punitive damages, in an amount to be
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proven at trial.
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COUNT TWO
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DECLARATORY RELIEF
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(By Plaintiff Against all Defendants)
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40.
Plaintiff repeats every allegation contained in the paragraphs above
and incorporates such allegations herein by reference.
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41.
There is an actual and present controversy existing between Plaintiff
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Henrik Fisker, on the one hand, and Defendants Aston Martin Lagonda Limited,
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Aston Martin Lagonda of North America, Inc., Andy Palmer, Simon Sproule and
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Marek Reichman, on the other, as to the design of the Force 1.
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COMPLAINT
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42.
The Plaintiff contends that the design of the Force 1 does not violate
any of Aston Martins trademarks, and that he has the right to manufacture,
market and sell the Force 1 vehicle free of disturbance from any of the
Defendants.
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43.
The Defendants contend that the Force 1 design infringes on
trademarks owned by Defendants Aston Martin Lagonda Limited and Aston
Martin Lagonda of North America, Inc., and that the Plaintiff is not lawfully
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permitted to manufacture, market and sell the Force 1.
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44.
Pursuant to the Declaratory Judgment Act, 28 USC 2201, the
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Plaintiff requests that the court declare whether the design of the Force 1 infringes
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on any of Aston Martins trademarks.
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WHEREFORE, Plaintiff prays that the Court award him:
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Count One
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1.
Compensatory damages of not less than $100 million.
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2.
Punitive damages.
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Count Two
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1.
Declaratory judgment.
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All Causes of Action
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1.
Costs of suit.
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2.
All other relief the Court deems necessary and proper.
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COMPLAINT
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MLG AUTOMOTIVE LAW, APLC
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Dated: January 4, 2016
By:
/s/ Jonathan A. Michaels
Jonathan A. Michaels, Esq.
Kathryn J. Harvey, Esq.
Kianna C. Parviz, Esq.
Attorneys for Plaintiff Henrik Fisker
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COMPLAINT
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JURY DEMAND
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Plaintiff hereby demands a trial by jury on all triable issues.
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MLG AUTOMOTIVE LAW, APLC
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Dated: January 4, 2016
By:
/s/ Jonathan A. Michaels
Jonathan A. Michaels, Esq.
Kathryn J. Harvey, Esq.
Kianna C. Parviz, Esq.
Attorneys for Plaintiff Henrik Fisker
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COMPLAINT
