Alex & Ani, LLC v. Elite Level Consulting, LLC

31 F. Supp. 3d 365, 2014 WL 3546296, 2014 U.S. Dist. LEXIS 97572
CourtDistrict Court, D. Rhode Island
DecidedJuly 18, 2014
DocketC.A. No. 13-718 S
StatusPublished
Cited by10 cases

This text of 31 F. Supp. 3d 365 (Alex & Ani, LLC v. Elite Level Consulting, LLC) is published on Counsel Stack Legal Research, covering District Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alex & Ani, LLC v. Elite Level Consulting, LLC, 31 F. Supp. 3d 365, 2014 WL 3546296, 2014 U.S. Dist. LEXIS 97572 (D.R.I. 2014).

Opinion

OPINION AND ORDER

WILLIAM E. SMITH, Chief Judge.

In this bewildering ballad of bungled bangle banditry, Plaintiff Alex and Ani, LLC (“Alex and Ani”), a purveyor of “positive-energy jewelry,” has brought a 14 count Amended Complaint against numerous defendants: Elite Level Consulting (“ELC”), Travis Brody (“Brody”), J. Jonathan Weiss (“Weiss”), Luxury Business Jets, LLC (“Jets”), Roxy, Inc. (“Roxy”), Genesis Sales Corporation (“Genesis”), JJ & M Corporation (“JJM”) and BJ’s Wholesale Club, Inc. (“BJ’s”) (collectively, “Defendants”). The suit stems from alleged acts of deception which resulted in Alex and Ani agreeing to sell some 26,000 pieces of jewelry to Brody and ELC at heavily discounted prices. Instead of placing these pieces in promotional packages at prestigious events, as advertised, Brody and ELC allegedly acted in concert with other Defendants to resell the pieces and many of them ultimately made their way to BJ’s locations in Massachusetts and Rhode Island.

Three motions to dismiss are currently pending. For the reasons that follow, the motion to dismiss filed by ELC and Brody (ECF No. 40) is GRANTED IN PART and DENIED IN PART; the motion to dismiss filed by BJ’s (ECF No. 41) is DENIED; and the motion to dismiss filed by Roxy, Genesis and JJM (ECF No. 49) [369]*369is GRANTED IN PART and DENIED IN PART.

I. Facts1

Alex and Ani is a Rhode Island-based limited liability company. It manufactures and sells what it calls “American-made, eco-friendly, spiritually uplifting, positive-energy jewelry” and has enjoyed enormous success, achieving' high levels of sales throughout the United States and the world. (Am. Compl. ¶¶ 22-23, EOF No. 25.) Alex and Ani sells its merchandise at both company-owned stores, as well as at boutiques owned by third parties. (Id. at ¶ 23.) Before Alex and Ani will affiliate with a third party-owned boutique, however, it employs a rigorous screening process to ensure that “jewelry is displayed in a manner that preserves [Alex and Ani’s] premiere-level brand.” (Id. at ¶¶ 23-24.)

BJ’s is based in Massachusetts and operates retail stores through which it sells products which may or may not be American-made, spiritually uplifting and so forth, but are certainly sold at discounted prices. In May 2013, a representative of BJ’s contacted one Michael David Foonberg (“Foonberg”), the President and owner of JJM, Roxy and Genesis, in an attempt to procure Alex and Ani jewelry for resale at BJ’s.2 (Id. at ¶¶ 25-26.) Foonberg subsequently submitted an application to Alex and Ani to sell Alex and Ani product, but this application was rejected. (Id. at ¶¶ 28.)

Perhaps sensing the oncoming rejection, the trio of JJM, Roxy and Genesis began exploring alternative means of securing Alex and Ani product. In May 2013, a JJM employee by the name of Carla Flam-mini (“Flammini”) reached out to Weiss,3 the President and owner of Jets.4 (Id. at ¶¶ 11, 29.) Weiss is alleged to have connected JJM, Roxy and Genesis with Brody and Brody’s company, ELC.5

Genesis agreed to pay Brody and ELC a commission for each piece of Alex and Ani jewelry that Brody was able to obtain. (Id. at ¶ 31.) On approximately May 22, 2013, Brody contacted Alex and Ani on behalf of ELC. (Id. at ¶ 32.) Brody represented that ELC was working for the organizers of the Wellington Classic Fall Challenge, a prestigious dressage competition in Florida,6 in order to secure discounted merchandise that would be included in gift bags provided to patrons in VIP suites at the event. (Id.)

In late May and early June 2013, Brody and Alex and Ani exchanged a series of [370]*370emails in which Brody assured Alex and Ani that its product would be used for these promotional purposes only and would, in no event, be resold. (Id. at ¶ 38.) Alex and Ani asked that Brody draft a written contract memorializing the arrangement. (Id. at ¶ 40.)

Simultaneously, Brody was exchanging emails with Weiss, Foonberg and Flammi-ni. In these emails, Brody sought advice as to the drafting of the contract and the parties discussed how they could extract further merchandise from Alex and Ani at discounted prices. (Id. at ¶¶ 43-48.) Upon receipt of an email from Weiss seeking input on Alex and Ani’s request that a clause be included in the contract that would prohibit resale, Foonberg responded: “Just read this ... I don’t want to know about it[,] however[,] just make sure it is very vague and always leave yourself an out.” (Id. at ¶¶ 43.) Once a contract had been executed, Brody circulated it to Weiss and Flammini. Upon receipt of the email, Flammini responded (cleverly):. “I THINK IT (sic) BEST, IF I DON’T KNOW ANYTHING:-).” (id at ¶ 45.)

On June 28, 2013, based on Brody’s representations, Alex and Ani sold ELC 8,000 pieces of its jewelry at deeply discounted prices. (Id. at ¶ 51.) Alex and Ani delivered this jewelry to an East Boston, Massachusetts distribution company. (Id.) The Amended Complaint suggests that one Julie Weiss, acting on behalf of Genesis, Roxy and JJM, negotiated and arranged Alex and Ani’s delivery of the jewelry.7 (Id. at ¶ 167.) From the East Boston distribution company, unbeknownst to Alex and Ani, the jewelry was shipped to Roxy and Genesis in Colorado. (Id. at ¶ 53.)

Several weeks later, Brody again contacted Alex and Ani, this time purporting to seek merchandise that could be given away as promotional gifts to elite guests at the Austin Film Festival. (Id. at ¶ 54.) Seeing another audience in its target demographic and subject to another agreement that the goods could not be resold under any circumstances, Alex and Ani sold an additional 9,000 pieces to Brody and ELC. (Id. at ¶¶ 55-56.) Alas, these items too made their way to Roxy and Genesis, and not to the film festival. (Id. at ¶ 57.) Finally, in a third transaction, Alex and Ani agreed to sell approximately 9,000 more pieces to Brody and ELC, also purportedly for use in connection with the Austin Film Festival. (Id. at ¶ 64.) These pieces, likewise, made their way to Roxy and Genesis. (Id. at ¶ 66.)

In total, Alex and Ani sold Brody and ELC some 26,668 pieces, of its jewelry for approximately $250,000. (Id. at ¶ 67.) This merchandise had a retail value of approximately $1,000,000. (Id.) In late September 2013, Alex and Ani discovered that the merchandise that it had sold to Brody and ELC was being sold at dis-' counted prices at BJ’s locations in Rhode Island and Massachusetts. (Id. at ¶ 68.) Despite representations from Alex and Ani that the merchandise in question had been obtained through fraud, BJ’s declined to stop selling the items and received at least one additional shipment from Roxy. (Id. at ¶¶ 73-78.) This lawsuit followed.

II. Discussion

A- Standard of Review

“In order to survive a motion to dismiss under Rule 12(b)(6), a plaintiff must ‘plead[] factual content that allows the [371]*371court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Sanchez v. Pereira-Castillo, 590 F.3d 31, 48 (1st Cir.2009) (quoting Ashcroft v. Iqbal,

Related

Cite This Page — Counsel Stack

Bluebook (online)
31 F. Supp. 3d 365, 2014 WL 3546296, 2014 U.S. Dist. LEXIS 97572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alex-ani-llc-v-elite-level-consulting-llc-rid-2014.