Jillian Amended

Case 2:17-cv-01645 Document 1-34 Filed 03/01/17 Page 1 of 48 Page ID #:429
EXHIBIT 34
1 THE LAW OFFICE OF JACK FITZGERALD, PC

Jack Fitzgerald (257370)
2 Hillcrest Professional Building
3636 Fourth Ave., Ste. 202
3 San Diego, CA 92101
Telephone: (619) 692-3840
4 Facsimile: (619) 362-9555
5 PRICE PARKINSON & KERR, PLLC

Jason M. Kerr (Pro Hac Vice pending)
6 Ronald F. Price (Pro Hac Vice pending)
5742 West Harold Gatty Drive
7 Salt Lake City, UT 84116
Telephone: (801) 530-2900
8 Facsimile: (801) 530-2957
9
Attorneys for Plaintiffs
10 JILLIAN MICHAELS AND EMPOWERED MEDIA, LLC
11
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 FOR THE COUNTY OF LOS ANGELES
14
) Case No.: SC126100
15 )
JILLIAN MICHAELS and EMPOWERED )
16 MEDIA, LLC, ) SECOND AMENDED COMPLAINT FOR:
)
17 Plaintiffs, ) 1. LEGAL MALPRACTICE
) 2. BREACH OF FIDUCIARY DUTY
18 v. ) 3. BREACH OF CONTRACT
) 4. DECLARATORY RELIEF
19 GREENBERG TRAURIG, LLP, and DAVID ) 5. DECLARATORY RELIEF
P. MARKMAN, and DOES 1-100 ) 6. UNFAIR BUSINESS PRACTICES
20 ) 7. NEGLIGENT
Defendants. ) MISREPRESENTATION
21 ) 8. FRAUDULENT CONCEALMENT
) 9. VIOLATIONS OF THE LANHAM
22 ) ACT
)
23 )
)
24 )
) DEMAND FOR JURY TRIAL
25 )
)
26 )
)
27
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SECOND AMENDED COMPLAINT
1 INTRODUCTION
2 1. This is an action brought by Plaintiffs against their former attorneys stemming from
3 negligent legal representation that Defendants Greenberg Traurig, LLP and David P. Markman
4 provided to Plaintiffs Jillian Michaels and Empowered Media, LLC in connection with the negotiation
5 and drafting of contracts related to the advertising and use of Plaintiff Jillian Michaels image, as well
6 as Defendants negligent misrepresentation and fraudulent conduct during the time frame in which
7 Defendants were previously representing Plaintiffs. The wrongful acts of Plaintiffs attorneys were
8 imputed to Plaintiffs by a federal court, resulting in millions of dollars in liability, for which Plaintiffs
9 ended up being personally responsible. Plaintiffs now seek compensation for these damages as well as
10 other damages suffered as a direct result of Defendants Greenberg Traurig, LLP and David P.
11 Markmans malpractice, breaches of fiduciary duties, ethical violations, and unfair business practices.
12 2. Jillian Michaels is a personal trainer, a bestselling author, and a Daytime Emmy-
13 nominated television personality. She is one of the nations leading health and wellness experts.
14 Known as Americas toughest trainer, Ms. Michaels has helped and inspired countless numbers of
15 people to lose weight and to live healthier, happier, and longer lives.
16 3. Ms. Michaels honest, tough, personal, caring, and effective approach to better health
17 has earned her the reputation as a motivator and role model to millions. With this reputation and with
18 her passion and hard work, Jillian Michaels built a trusted and valuable brand name for herself. For
19 example, Ms. Michaels was the most popular fitness instructor for several years on NBCs hit
20 television show, The Biggest Loser. On The Biggest Loser, Ms. Michaels helped obese individuals lose
21 weight over a period of weeks through the imposition of a balanced diet and a rigorous exercise
22 routine. Ms. Michaels also starred in the national hit show The Doctors on CBS. Ms. Michaels has
23 achieved substantial fame in the weight loss and fitness industry and has developed a large following
24 and reputation for both hard work and a sound approach to health. In addition to her work on television
25 and radio, she has authored several books on weight loss and wellness.
26 4. With this increasing fame and value came the need for careful and competent legal
27 representation to protect Ms. Michaels and manage the complex and tricky legal environment that such
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1 fame and recognition generates, especially in the drafting and negotiating of talent contracts that would
2 protect Ms. Michaels interests. In 2008, Ms. Michaels and Empowered Media, LLC (a company
3 which controls Ms. Michaels image, endorsements, and involvement in her business enterprises)
4 retained attorney David P. Markman and his law firm of Greenberg Traurig, to advise her on the
5 important and complicated legal issues relating to Ms. Michaels role as a celerity and personality, and
6 to represent her in connection with the negotiation and drafting of contracts related to the advertising
7 and use of Ms. Michaels image. Unfortunately, Markman and Greenberg Traurigs representation of
8 Ms. Michaels consisted of a series of short cuts, laziness, negligence, oversight, ethical violations, and
9 fraudulent concealment; all so that Greenberg Traurig and Markman could get millions of dollars for
10 themselves with as little effort and care as possible, and all at Ms. Michaels expense.
11 5. Greenberg Traurig and Markman negotiated a contingent fee agreement on behalf of
12 themselves with Ms. Michaels for five percent (5%) of all gross contract amounts, yet Greenberg
13 Traurig and Markman failed to reduce this contingent fee agreement to writing in direct violation of
14 Cal. Bus. & Prof. Code 6147(a), and in violation of their professional and ethical duties.
15 6. From the time that Greenberg Traurig and Markman were retained until Ms. Michaels
16 and Empowered Media terminated them for malpractice in August of 2013,1 Greenberg Traurig and
17 Markman committed multiple acts of malpractice, gross negligence, breaches of fiduciary duty,
18 violations of ethical duties, and unfair business practices against their clients. For example, and as
19 detailed more fully below, in order to secure lucrative contingent fees, Greenberg Traurig and
20 Markman concealed and failed to inform their clients of conflicting contract provisions, and failed to
21 inform their clients, and obtain appropriate waivers, of conflicts which existed with other clients of
22 Defendants. Greenberg Traurig and Markman did not include these provisions with the versions of the
23 agreements sent to Ms. Michaels and Empowered Media for signature, nor did they ever advise Ms.
24 Michaels or Empowered Media regarding these conflicting provisions.
25
26
1 Plaintiffs told Defendants to stop all work on the matters underlying this litigation on July 9, 2013 by
27 telephone. However, Plaintiffs did not formally terminate Defendants until August 22, 2013.
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1 7. Not only should Greenberg Traurig and Markman have been fully aware of these
2 directly contrary provisions, they were in fact aware of them. Nevertheless, they concealed them from
3 their clients and failed to advise plaintiffs regarding them.
4 8. Not only should Greenberg Traurig and Markman have been fully aware of the extreme
5 financial and personal liability these conflicting provisions exposed their clients to, but they were also
6 fully aware of this exposure. Yet they did nothing to protect their clients or advise them of the high
7 likelihood of impending disaster.
8 9. Defendants Greenberg Traurig and Markmans concealment and negligence caused Ms.
9 Michaels and Empowered Media to unwittingly violate key warranty provisions, simply by entering
10 into these contracts, directly resulting in Ms. Michaels liability for and payment of millions of dollars
11 in damages.
12 10. Ms. Michaels was found culpable of committing fraud as a result of entering into
13 contracts with conflicting provisions that her attorneys never even showed or gave to her until after
14 they had already taken effect. In fact, Greenberg Traurig and Markman never even told Ms. Michaels
15 about these conflicting provisions.
16 11. As further detailed below, Greenberg Traurig and Markmans concealment and
17 negligence not only resulted in millions of dollars in damages paid by Ms. Michaels but resulted in a
18 host of other damages which will be described in more detail below. And this was just one of many
19 instances in which defendants Greenberg Traurig and Markman repeatedly failed to live up to their
20 duties as attorneys and committed malpractice, negligence, breaches of fiduciary duties, unfair
21 business practices, and ethical violations, including failing to set up a testamentary trust for Ms.
22 Michaels, in spite of being paid to do so, and in spite of informing their client that they had done so,
23 and failing to protect Ms. Michaels interests though due diligence in contract negotiations andon
24 more than one occasionnot bothering to even negotiate key, standard contract provisions required to
25 protect talent. These instances are more fully described in the following pages.
26
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1 12. When Ms. Michaels and Empowered finally became aware of the full extent of
2 Greenberg Traurig and Markmans malpractice, negligence, and breaches of fiduciary duties, they
3 terminated the attorney-client relationship and now seek their damages through this lawsuit.
4 THE PARTIES
5 13. Plaintiff Jillian Michaels is an individual who is, and at all times herein mentioned was,
6 living in Los Angeles County, California. Jillian Michaels is a well-known celebrity in the area of
7 health and fitness.
8 14. Plaintiff Empowered Media, LLC, is a limited liability company with its principal place
9 of business in the State of Florida. Empowered Media is the entity through which Ms. Michaels
10 conducts many of her business activities and is the owner of the rights to the use of Ms. Michaels
11 name and image in connection with products and services.
12 15. Defendant Greenberg Traurig, LLP is, and at all times herein mentioned was, a limited
13 liability partnership duly organized and existing under the laws of the State of California with an office
14 in the City and County Los Angeles, California.
15 16. Defendant David P. Markman is an individual and an attorney licensed to practice law
16 in California with an office in Los Angeles, California who resides in California.
17 17. At all times herein mentioned, defendant Markman was a partner/shareholder at, and
18 agent of the law firm, defendant Greenberg Traurig, and in doing the things herein alleged was acting
19 within the scope of such employment and agency.
20 18. Plaintiffs are ignorant of the true names and capacities of the defendants sued herein as
21 Does 1 through 100, inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs
22 will amend this Complaint to allege the true names and capacities of Does 1 through 100, inclusive,
23 when plaintiffs ascertain the identity of such defendants. Plaintiffs are informed and believe, and
24 thereon allege, that each of these defendants is responsible in some manner for the acts and omissions
25 which damaged plaintiffs, and that plaintiffs damages as alleged herein were proximately caused by
26 their actions or omissions.

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1 19. At all times herein mentioned, defendants Markman, and Does 1 through 100, and each
2 of them, were, and now are, attorneys at law, duly admitted and licensed to practice law in the State of
3 California, and doing business in Los Angeles County, California. At all times mentioned herein,
4 defendant Greenberg Traurig was a law firm which employed defendant Markman and Does 1 through
5 100, and was authorized to do business and provide legal services in the State of California.
6 20. Plaintiffs are informed and believe and thereon allege, that at all times herein
7 mentioned, each of the defendants, and Does 1 through 100, and each of them, were the agents and/or
8 employees of each of the remaining defendants, and in doing the things herein alleged, were acting
9 within the course and scope of said agency and/or employment, in that the actions of each of the
10 defendants as herein alleged were authorized, approved, and/or ratified by each of the other defendants
11 as principals and/or employers.
12 21. Defendants Greenberg Traurig, Markman, and Does 1 through 100 were continuously,
13 at all times relevant, Michaels and Empowered Medias attorneys with respect to the agreed tasks
14 discussed in this Complaint, until (at the earliest) July 9, 2013, when Michaels and Empowered Media
15 told Greenberg Traurig and Markman to stop all work on these matters or until August 22, 2013 when
16 Michaels and Empowered terminated defendants Greenberg Traurig and Markman for their
17 malpractice.
18 BACKGROUND
19 22. David Markman and the firm of Greenberg Traurig began representing Ms. Michaels
20 and Empowered Media on various matters sometime prior to the fall of 2008. Ms. Michaels retained
21 Greenberg Traurig and David Markman because Greenberg Traurig and Markman held themselves out
22 to her, the public, and the profession as specialists and experts in entertainment law and talent contract
23 negotiation. For example, Greenberg Traurigs website boasts that the firm has one of the preeminent,
24 international multidisciplinary entertainment and media practices and touts the fact that Greenberg
25 Traurig received the Outstanding Media & Entertainment Law Firm Award, recognizing the best
26 media and entertainment practice at a major law firm.

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1 23. Greenberg Traurig and Markman entered into a contingent fee agreement with Ms.
2 Michaels and Empowered Media wherein Greenberg Traurig and Markman would receive a contingent
3 fee payment of five percent 5% of gross of all contracts negotiated on Ms. Michaels behalf.
4 24. The nature of this contingent fee agreement incentivized Greenberg Traurig and
5 Markman to try to make as much money for themselves with as little time and effort as possible.
6 25. Notwithstanding the fact that Greenberg Traurig and Markman negotiated a contingent
7 fee agreement with Ms. Michaels, Greenberg Traurig and Markman failed to reduce this contingent fee
8 agreement to writing, failed to sign any writing discussing the contingent fee agreement, failed to ask
9 Ms. Michaels or Empowered Media to sign any agreement, and failed provide a duplicate copy of a
10 written agreement to Ms. Michaels or Empowered Media, in direct violation of Cal. Bus. & Prof. Code
11 6147(a), and in violation of their professional and ethical duties. Greenberg Traurig and Markman
12 also failed to advise Ms. Michaels of her right to have an independent attorney review the contingent
13 fee agreement or of the advisability of doing so. In fact, Ms. Michaels and Empowered Media never
14 signed an engagement letter or other agreement with Greenberg Traurig or Markman.
15 26. Among other things, Greenberg Traurig and Markman represented Ms. Michaels as she
16 negotiated and entered into contracts with NBC for her work on the show The Biggest Loser.
17 Greenberg Traurig and Markman also represented Ms. Michaels as she negotiated and entered into
18 other contracts, including various licensing agreements, agreements to make appearances, and such.
19 DEFENDANTS CAUSED MS. MICHAELS TO ENTER INTO CONFLICITING

20 CONTRACTS AND MAKE FALSE WARRANTIES
21 27. In early 2009, Ms. Michaels and Empowered Media began discussing a potential
22 arrangement under which ThinCare International, LLC (ThinCare), a Utah-based company that
23 develops, manufactures, markets, and distributes dietary supplements throughout the United States,
24 would develop and market a line of weight-loss supplements bearing Ms. Michaels name and image.
25 The parties, through their respective legal counsel, began discussing and negotiating contractual terms.
26 Greenberg Traurig and Markman represented Ms. Michaels and Empowered Media in these
27 negotiations.
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1 28. For several months leading up to the execution of the ThinCare Agreement, the parties
2 engaged in extensive negotiations with ThinCare. Greenberg Traurig and Markman represented Ms.
3 Michaels and Empowered Media throughout this entire process. On Ms. Michaels and Empowered
4 Medias behalf, Greenberg Traurig and Markman exchanged drafts of the ThinCare Agreement with
5 counsel for ThinCare and engaged in extensive communication with counsel for ThinCare concerning
6 the same. Greenberg Traurig and Markman counseled Ms. Michaels and made recommendations to her
7 regarding the substance of the agreement. Greenberg Traurig and Markman ultimately approved of the
8 ThinCare Agreement and advised Ms. Michaels and Empowered Media to execute it.
9 29. With the assistance of Greenberg Traurig and Markman, Ms. Michaels and Empowered
10 Media entered into a licensing agreement with ThinCare on May 5, 2009. The agreement, relevant
11 provisions of which are described more fully below, provided that ThinCare would manufacture,
12 market, and sell weight-loss products bearing Ms. Michaels image, and ThinCare would in turn make
13 royalty payments to Ms. Michaels.
14 30. In entering into the ThinCare Agreement, Ms. Michaels and Empowered Media made
15 various Representations and Warranties. Specifically, in executing the ThinCare Agreement, Ms.
16 Michaels warranted the following:
17 Licensor represents and warrants as follows: . . . Licensor has entered into no

other agreement or contract . . . which would prohibit Licensor from performing its
18 obligations under this Agreement or permitting Licensee to exercise the rights granted
herein; . . .
19
Licensor is the sole owner of the Jillian Michaels Identifications, or has the sole
20 and exclusive right to use the Jillian Michaels Identifications. Licensor has the right to
grant this license and the use of the Jillian Michaels Identifications by Licensee as
21 provided herein, does not and will not infringe the rights of any third party; . . .
22 ThinCare Agreement, 11(b)(iii) and 11(b)(iv) (emphasis added).
23 31. The ThinCare Agreement defines Jillian Michaels Identifications to include, among
24 other things, Ms. Michaels image, likeness, performances, etc.2 The agreement further declares that
25
26 2 Specifically, the agreement defines Jillian Michaels Identifications as follows: (as and to the
27 extent approved by Licensor in each instance) Michaels name (including all variations thereof,
initials, and nicknames), fame, statements, voice, video, film or other recorded portrayals or
28 (Continued...)
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1 Ms. Michaels and Empowered Medias rights to approve marketing materials are personal to Licensor
2 and may not be exercised by any other person or entity. Id., 4(d).
3 32. Evidence in a subsequent lawsuit between Ms. Michaels and Empowered Media, on the
4 one hand, and Thincare on the other hand, concerning the ThinCare Agreement, showed that ThinCare
5 heavily relied upon these representations and warranties (together, the Warranties) in the ThinCare
6 Agreement. The ThinCare Agreement gave Ms. Michaels certain approval rights with respect to
7 relevant marketing content that ThinCare would produce. ThinCare accordingly wanted to be sure that
8 there were no third parties that could exercise any control over the approval of advertising content. As
9 the Warranties were legal in nature, Ms. Michaels relied on the advice of Greenberg Traurig and
10 Markman in executing the ThinCare Agreement and making the Warranties.
11 33. Unfortunately, through no fault of Ms. Michaels or Empowered Media, the Warranties
12 turned out to be false at the time they were made becausewithin weeksMs. Michaels had executed
13 a third-party contract with NBC, with an effective date prior to the execution of the ThinCare
14 Agreement, that, on its face, directly contradicted the assertions made in the Warranties. Not only were
15 Greenberg Traurig and Markman aware of the existence of this other contract and its provisions, but
16 Greenberg Traurig and Markman in fact represented Ms. Michaels during the simultaneous
17 negotiation, drafting, and execution of the other agreement.
18 34. During the months leading up to the execution of the ThinCare Agreement, Greenberg
19 Traurig and Markman simultaneously represented Ms. Michaels in her negotiations with NBC
20 regarding the show The Biggest Loser. Relying on Greenberg Traurig and Markmans advice, Ms.
21 Michaels executed a contract with BL4 Productions, Inc., the company that produces the television
22 show The Biggest Loser for NBC, with an effective date of April 9, 2009 (the BL4 Contract).
23 Among other things, the BL4 Contract contained exclusivity provisions that restricted Ms. Michaels
24
25 (...Continued)
performances, signature, biography, photograph, likeness, image, any and all trademarks relating to
26 any of the foregoing, and any similar materials, or any facsimile or depiction thereof, without
27 limitation, in whole or in part, containing, associated with or relating to Michaels and/or Licensor. See
ThinCare Agreement, 1(e).
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1 ability to advertise for third-parties to that contractlike ThinCare. Specifically, the BL4 Contract
2 mandated that:
3 Artist [Michaels] shall not render services or appear on-camera or off-camera in any
commercials (including infomercials). . . . Artist may render services on one (1) national
4 commercial campaign during each year hereunder, subject to the reasonable approval of
5 the television network to which Company has granted the initial broadcast rights to the
Series (the Network) . . . provided that [i] if the Series involves product integration,
6 then notwithstanding the foregoing, Artist may not render services on any endorsement
for any product which is competitive with the product(s) of any sponsors that are
7 integrated into the Series and [ii] at no time in the Series Term may Artist appear in a
new commercial campaign while an old campaign in which Artist appears is still being
8
broadcast, and [iii] at no time may Artist appear in any infomercial. . . . Any permitted
9 services of Artist for others are subject to Artists obligation to render services hereunder.
10 See BL4 Contract, 7(b) and 7(c).
11 35. These exclusivity obligations in the BL4 Contract rendered false Ms. Michaels later
12 Warranties made in the ThinCare Agreement. The ThinCare Agreement states that no other
13 agreement or contract existed that could inhibit ThinCare from exercise[ing] the rights granted
14 herein,3 which would include rights to use Ms. Michaels image in advertising,4 yet the BL4 Contract
15 specifically restricts Ms. Michaels from rendering services or appear[ing] on-camera or off-camera in
16 any commercials.5 The ThinCare Agreement warrants that Empowered Media has the sole and
17 exclusive right to use Ms. Michaels likeness, and that ThinCares use of that likeness does not and
18 will not infringe the rights of any third party,6 yet the BL4 Contract mandates that any services by Ms.
19 Michaels for others are subject to [Michaels] obligation to render services first under the BL4
20 Contract.7 Ms. Michaels and Empowered Media represented in the ThinCare Agreement that the rights
21
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3 ThinCare Agreement, 11(b)(iii).
24
4
See, e.g., ThinCare Agreement, 8.
25 5
BL4 Contract, 7(b).
26 6 ThinCare Agreement, 11(b)(iv).
27 7 BL4 Contract, 7(c).
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1 to approve marketing materials are personal to Licensor and may not be exercised by any other person
2 or entity,8 yet the BL4 Contract specifically grants those rights to another person or entity. 9
3 36. The omission of any disclosures regarding NBCs rights in the ThinCare Agreement is
4 highly unusual, as industry standards require disclosure of such rights when entering license
5 agreements that would be subject to approval rights of third parties such as BL4 and NBC.
6 37. ThinCare understood that it was receiving significant advertising rights, subject only to
7 Ms. Michaels and Empowered Medias approval, when in fact ThinCare received advertising rights
8 subject to restrictions by a third-party and stranger to the ThinCare Agreement. Those restrictions,
9 among other things, legally prevented ThinCare from running ads while a previous ad campaign was
10 already in place, granted approval rights to NBC, prevented Ms. Michaels from appearing in an
11 infomercial, and limited the number of campaigns that could be run in any year. The BL4 Contract
12 could even prevent Ms. Michaels from appearing in any commercials at all.10 In short, relying on the
13 Warranties that Ms. Michaels made based on the advice of Greenberg Traurig and Markman, ThinCare
14 entered into the ThinCare Agreement understanding that it would have first priority with respect to
15 approval of advertising materials. Instead, Ms. Michaels unwittingly put ThinCare at the mercy and
16 whim of an undisclosed, third-party entity, giving rise to a claim against Ms. Michaels and Empowered
17 Media for false representation.
18 MS. MICHAELS WAS UNAWARE OF THE CONFLICTS AND FALSE

WARRANTIES BECAUSE OF DEFENDANTS CONCEALMENT, NEGLIGENCE,
19 MALPRACTICE, AND OTHER BREACHES
20 38. Not only did Greenberg Traurig and Markman fail to advise Ms. Michaels and
21 Empowered Media regarding these conflicting provisions, but they actually concealed the conflict
22 from their clients. Greenberg Traurig and Markman did this because they did not want to lose millions
23
24
25 8
ThinCare Agreement, 4(d).
26 9 BL4 Contract, 7(b).
27 10 See BL4 Contract, 7(b).
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1 of dollars in contingent fees that they would receive if and only if Ms. Michaels entered into these
2 conflicting agreements.
3 39. Greenberg Traurig and Markman acted such to ensure that Ms. Michaels and
4 Empowered Media would not be made aware of the conflicting provisions. In fact, Greenberg Traurig
5 and Markman did not let Ms. Michaels or Empowered Media see the entire BL4 Contract and did not
6 show Ms. Michaels the complete ThinCare Agreement until after both were already signed.
7 40. On May 8, 2009, Lynne Osborne, Assistant to Markman and employee of Greenberg
8 Traurig, sent an email to Ms. Michaels and her manager titled License Agreement containing the
9 following:
10 Attached is the signature page to the License Agreement between ThinCare International,
LLC and Empowered Media, LLC. Please print four (4) copies of this page, sign each
11 copy, fax one copy back to me at 310.586.0243, and call me when finished so I can have
the originals picked up by messenger.
12
13 Please call me if you have any questions. Thanks in advance for your prompt attention to
this request.
14
15 41. The only attachment to this email was a pdf of page 15 only (the last page) of the
16 ThinCare Agreement. At no time before she signed it did Greenberg Traurig or Markman provide Ms.
17 Michaels with a copy of the entire ThinCare Agreement, much less the critical Warranties. Nor did
18 they advise Ms. Michaels or Empowered Media regarding their existence or effect.
19 42. Greenberg Traurig and Markman handled the BL4 Agreement the same way. On May
20 11, 2009, Ms. Osborne sent Ms. Michaels and her manager an email with the only the signature page
21 of the BL4 Contract. At no time before she signed it did Greenberg Traurig or Markman provide Ms.
22 Michaels with a copy of the entire BL4 Contract, much less the critical provisions granting NBC
23 approval of Ms. Michaels advertising. Nor did they advise Ms. Michaels or Empowered Media
24 regarding their effect.
25 43. While Ms. Michaels was aware that she had granted certain approval rights to NBC, she
26 was unaware of their exact legal nature and effect. And Ms. Michaels was entirely unaware that she
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1 had specifically warranted to ThinCare that she had not granted these rights. Ms. Michaels was relying
2 on Greenberg Traurig and Markman to properly advise her with respect to both of these contracts.
3 44. The inconsistencies between the ThinCare Agreement and the BL4 Contract and the
4 ensuing violation of the Warranties resulted directly from the concealment and gross negligence of
5 Greenberg Traurig and Markman. Greenberg Traurig and Markmans failure to mention these
6 inconsistencies while fully aware of them or, at a minimum, their negligent failure to notice and
7 understand these contractual inconsistencies and their ramifications and to properly advise Ms.
8 Michaels, led to Ms. Michaels unknowing fraudulent representation concerning her advertising
9 approval rights.
10 45. The discrepancies between the ThinCare Agreement and the BL4 Contract are legal in
11 nature. Ms. Michaels and Empowered Media employed Greenberg Traurig and Markman to advise
12 them as to the propriety of entering into these agreements. As already noted, Greenberg Traurig and
13 Markman were involved in the negotiation, drafting, review, and approval of both the ThinCare
14 Agreement and the BL4 Contract. Yet at no time did Greenberg Traurig or Markman advise Ms.
15 Michaels or Empowered Media concerning these contractual discrepancies, or disclose the issue to
16 ThinCare before the parties executed the ThinCare Agreement.
17 46. Ms. Michaels was only made aware of the issue after ThinCare filed a lawsuit against
18 her.
19 THE THINCARE LAWSUIT
20 47. Unfortunately and in large part due to various disputes over approval of advertising,
21 ThinCare filed a lawsuit against Ms. Michaels and Empowered Media in January 2011 in the United
22 States District Court for the District of Utah, Case No. 2:11-cv-0092 (the Lawsuit).
23 48. In its Second Amended Complaint and Jury Demand filed in the Lawsuit (the
24 Complaint), ThinCare asserted eight separate claims against Ms. Michaels and Empowered Media,
25 including claims for breach of contract, breach of the covenant of good faith and fair dealing,
26 fraudulent inducement, unilateral mistake, injunctive relief, and three separate requests for declaratory
27 relief. Ms. Michaels and Empowered Media responded with six counterclaims of their own, including
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1 three claims for breach of contract regarding unpaid royalties and use of advertising materials, breach
2 of the covenant of good faith and fair dealing, declaratory relief and anticipatory breach, and a third-
3 party claim for breach of contract asserted against an entity affiliated with ThinCare.
4 49. The discrepancies between the BL4 Contract and the ThinCare Agreement placed the
5 facts squarely within ThinCares claim for fraudulent inducement in the Lawsuita claim stating that
6 had ThinCare known that the Warranties were false, it would not have entered into the ThinCare
7 Agreement.
8 50. The Lawsuit lasted for over two years.
9 GREENBERG TRAURIG AND MARKMAN CONTINUED TO CONCEAL THE

CONFLCITING CLAUSES AND FALSE WARRANTIES FROM MS. MICHALES AND
10 EMPOWERED MEDIA THROUGOUHT THE THINCARE LAWSUIT
11 51. At the time that ThinCare filed the Lawsuit, Ms. Michaels and Empowered Media were
12 being represented by Greenberg Traurig and Markman in all legal matters. When the suit was
13 imminent, Ms. Michaels and Empowered Media approached their attorneys to ask them for
14 recommendations of who to handle the matter. Greenberg Traurig and Markman recommended that
15 Greenberg Traurig itself handle the ThinCare Lawsuit (with then-Greenberg Traurig shareholder
16 Matthew Steinberg overseeing Ms. Michaels and Empowered Medias defense and counterclaims).
17 With this recommendation, Ms. Michaels and Empowered Media retained Greenberg Traurig for their
18 defense in the lawsuit.
19 52. At the time they were retained to defend Ms. Michaels and Empowered Media,
20 Greenberg Traurig had an actual and potential conflict of interest with their clients. Namely,
21 ThinCares cause of action for fraudulent inducement and related allegations had direct, damning, and
22 potentially costly implications for Greenberg Traurig and Markman. These implications placed
23 Greenberg Traurig and Markmans interests in avoiding liability, publicity, and exposure for fraud and
24 malpractice directly adverse to the interests of their clients. Nevertheless, Greenberg Traurig and
25 Markman failed to disclose these actual and potential conflicts to their clients, Ms. Michaels and
26 Empowered Media. And Greenberg Traurig and Markman failed to obtain a waiver of conflicts from
27 Ms. Michaels and Empowered Media. Had Ms. Michaels and Empowered Media been made aware of
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1 this conflict, they would have chosen more impartial, disinterested counsel to represent them in the
2 ThinCare Lawsuit. Defendants Greenberg Traurig and Markman intentionally failed to disclose the
3 conflicts of interest between them and Plaintiffs in order to enrich themselves by being able to bill for
4 services rendered in the litigation, and to protect themselves from exposing their malpractice. In
5 actively concealing this conflict from their clients, Defendants specifically intended that Plaintiffs be
6 injured so that Defendants could take advantage of that concealment by obtaining ongoing fees from
7 Plaintiffs and so that Defendants could shield themselves form the consequences of their malpractice.
8 53. Representing Ms. Michaels and Empowered Media in the ThinCare Lawsuit put
9 Greenberg Traurig and Markman in a position in which they could continue to conceal from their
10 clients the conflicting contract provisions, as well Greenberg Traurig and Markmans malpractice
11 relating to these provisions. Greenberg Traurig and Markman exploited this position. For example,
12 Greenberg Traurig and Markman continued to conceal these significant problems from Ms. Michaels
13 and Empowered Media when they disclosed the existence of the claim for fraudulent inducement, but
14 intentionally failed to disclose the underlying problem of the conflicting provisions, telling Ms.
15 Michaels and Empowered Media that the fraudulent inducement claim was not a problem for you.
16 These words tuned out to be tragically and spectacularly false.
17 54. Later when Ms. Michaels and Empowered Media discussed the case with their
18 attorneys, Markman told them that there never was a BL4 Contract in the first placea deliberate
19 falsehood. When Ms. Michaels and Empowered Media learned that there was indeed a BL4 Contract,
20 Markman told them first (incorrectly) that ThinCares claim for fraudulent inducement would fail
21 because they did not suffer any damages and then (also incorrectly), Markman told plaintiffs that the
22 fraudulent inducement claim would fail because ThinCare somehow waived the claim. But at no time
23 did Greenberg Traurig or Markman inform their clients of the existence of the conflicting contract
24 provisions or the fact of the false warranties.
25 55. Early in the ThinCare Lawsuit, Ms. Michaels and Empowered Mediarepresented by
26 Greenberg Traurigmade an unsuccessful bid for a preliminary injunction. At the preliminary

27
28
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1 injunction hearing, however, the court ordered (among other things) that ThinCare make royalty
2 payments into an escrow account while the Lawsuit was pending.
4 MS. MICHAELS AND EMPOWERED MEDIA FINALLY DISCOVER GREENBERG

TRAURIG AND MARKMANS NEGLIGENCE ON THE EVE OF DISASTER IN THE
5 THINCARE LAWSUIT
6 56. During the Lawsuit, the parties engaged in substantial discovery and, in the spring of
7 2013, filed various dispositive motions, including a motion for summary judgment filed by ThinCare
8 on its claim for fraudulent inducement (the Motion).11
9 57. Not long before the fraud in the inducement Motion was filed, Ms. Michaels learned
10 that Greenberg Traurig and Markman had failed to set up a testamentary trust for her, in spite of being
11 paid to do so and in spite of representing to her that they had done so.
12 58. In or around December of 2010, Ms. Michaels retained Greenberg Traurig and
13 Markman to set up a testamentary trust. Ms. Michaels personally paid Greenberg Traurig and
14 Markman a substantial fee to set up this testamentary trust, separate and apart from her contingent fee
15 agreement. In October 2011, Ms. Michaels utilities were shut off because Greenberg Traurig and
16 Markman had failed to make requested changes to Ms. Michaels property trusts, which they said they
17 would handle in June 2011. In November of 2011, when Markman still had not set up the testamentary
18 trust, Ms. Michaels informed Greenberg Traurig and Markman that she was going to hire another
19 lawyer to set up her trust. Markman replied, via email with the following:
20 I am so sorry (and embarrassed). I know Michael was in touch with Flo and I assumed all
was handled. You shouldn't have to worry about this with everything that is going on. My
21 bad. Have Janet call me and I will get her whatever she needs.
22 59. Shortly thereafter, Markman told Ms. Michaels that the trust was completed and in
23 place. However, unbeknownst to Ms. Michaels, Markman had not completed the testamentary trust.
24
11
Ms. Michaels and Empowered Media filed several dispositive motions at this time. If these motions
25
had been successful, Ms. Michaels and Empowered Media would have been entitled to millions in past
26 due royalties and would have defeated ThinCares claims. However, these motions were rendered
moot when the judge indicated his intent to grant ThinCares motion for summary judgment with
27 respect to its fraudulent inducement claim.
28
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1 60. It was not until around December 2012, while Ms. Michaels was in the process of
2 preparing a prenuptial agreement, that she learned that Greenberg Traurig and Markman never
3 completed the testamentary trust, contrary to what they had told her. Had Greenberg Traurig and
4 Markmans failure to set up the trust not been discovered through the prenuptial process, Ms. Michaels
5 could have died without her arranged protections for her family in place. Michaels prior trust would
6 have remained in effect and her family would have received nothing. Greenberg Traurig did eventually
7 set up a trust for Ms. Michaels. However, on information and belief, Greenberg Traurig s malpractice
8 and deception resulted in Ms. Michaels expending additional fees, above what she would have spent
9 absent this deception and malpractice. In addition, Greenberg Traurig s malpractice and deception
10 with respect to her trust resulted in Ms. Michaels being forced to expend additional time and effort
11 reviewing Greenberg Traurig and Markmans legal services and additional time and effort
12 communicating with Greenberg Traurig and Markman to correct defendants mistakes.
13 61. This discovery was the first time that Ms. Michaels realized that her very own attorneys,
14 defendants Greenberg Traurig and Markman, could not be taken at their word and she thereafter began
15 to verify for herself everything they told her and everything they did as they continued to represent her.
16 This included her own investigation of the pending motions in the ThinCare Lawsuit, including (after it
17 was filed) ThinCares Motion for summary judgment regarding fraudulent inducement.
18 62. Upon investigating this Motion, Ms. Michaels and Empowered Media finally learned
19 the truth about the conflicting provisions, and Greenberg Traurig and Markmans malpractice in
20 concealing these provisions and failing to advise their clients regarding them.
21 GREENBERG TRAURIG AND MARKMANS MALPRACTICE AND NEGLIGENCE

CAUSED MS. MICHALES AND EMPOWERED MEDIA TO LOSE THE THINCARE
22 LAWSUIT
23 63. ThinCares Motion for Partial Summary Judgment re Count IV (Fraudulent
24 Inducement) of its Second Amended Complaint, filed April 8, 2013, set forth undisputed facts showing
25 that the advertising-related exclusivity provisions of the earlier-signed BL4 Contract rendered false the
26 Warranties made in the subsequently-signed ThinCare Agreement. The Motion also set forth facts
27 demonstrating that ThinCare had met all elements of its fraudulent inducement claim in its Complaint.
28
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1 The Motion was fully briefed over the following weeks and, along with several motions filed by Ms.
2 Michaels and Empowered Media, came before the court at a hearing held on July 8, 2013 (the
3 Hearing).
4 64. The judge opened the Hearing by announcing a devastating result for Ms. Michaels: that
5 he planned to grant ThinCares Motion and, thus, find Ms. Michaels liable for fraudulent inducement
6 as a matter of law, based on the false Warranties. Specifically, after the parties counsel stated their
7 appearances, the proceeding went as follows:
8 THE COURT: Thank you. We are here on several different motions. And earlier
last week I had sent out a proposed agenda in terms of the order. After thinking about that
9 over the long weekend, and looking again at some of the motions, I want to change the
order and begin with the plaintiffs motion for partial summary judgment on count
10
four which is fraud in the inducement. And let me tell you where I am in terms of
11 inclination based on the memoranda that have been submitted and, of course, without
hearing oral argument which, of course, I want to do, but a couple of points. Based on
12 the written memoranda, and the facts that are provided in support of that memoranda,
my inclination is to grant the plaintiffs motion for summary judgment on fraud on the
13 inducement. Now the implications of that, I want to make sure that the plaintiff
understands and is thinking about this the same way that I am, that would seem to me to
14
suggest that the remedy that is left is rescission, and so that the claims for lost profits and
15 other contract damages would be largely mooted if, in fact, after oral argument I grant
this motion. As I understand Utah law, and Im happy to hear argument on this, is by
16 proceeding with this motion on the fraud in the inducement claim, the plaintiff is electing
rescission as a remedy which means that the contract action is, if I grant this motion, is
17 mooted, and we would then be left with the issue of how do we put the parties back into
the position they would have been in but for having entered into the contract under the
18
mistaken belief supported by the fraud. So under those assumptions, I am happy to hear
19 you proceed.
[THINCARES COUNSEL]: Your Honor, may I confer with my co-counsel for
20
just two minutes? This is a bit unexpected. I want to make sure --
21 THE COURT: If we need to take a longer recess, let me know because I want you
to --
22
[THINCARES COUNSEL]: I think we can short circuit things significantly if we
23 could have 10 minutes or so.
24 THE COURT: Sure. Lets take a 10 minute recess.
[THINCARES COUNSEL]: Thank you.
25
(Recess.)
26
THE COURT: We are back in session in ThinCare versus Empowered Media.
27 You may proceed.
28
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1 [THINCARES COUNSEL]: Your Honor, I have spoken with my co-counsel and

[Ms. Michaels and Empowered Medias counsel], and we would request a 48-hour
2 continuance of this hearing to see if we can resolve this matter based on the courts
preliminary ruling.
3
THE COURT: I am largely in favor of people having the resolution of disputes in
4 their own hands. So I will leave all of the motions pending.
5 [The Court then rescheduled the matter to July 15, 2013, a week hence.]
6 65. The proceedings of the Hearing, wherein the court announced that it planned to grant
7 the Motion, were crushing to Ms. Michaels and Empowered Media. Had the court immediately
8 proceeded to grant the Motion as intended, not only would Ms. Michaels have lost the Lawsuit, but her
9 career would have been destroyed. A court order declaring that she committed fraud against one of her
10 licensees would have greatly harmed her reputation with her other licensees, her business
12
11 arrangements, and her national imageall essential to her success. Moreover, the ruling would have
12 exposed her to over $20 million dollars in damages. Furthermore, as the ruling would involve fraud, it
13 would have opened the door to punitive damages, driving the damages amount even higher. Greenberg
14 Traurig and Markmans negligence, causing Ms. Michaels to unwittingly violate the Warranties,
15 directly led to this disastrous result. Only the mercy of the court in allowing the parties an opportunity
16 to come to an out-of-court agreement before it rendered its judgment spared her all of this.
17 MS. MICHAELS WAS FORCED TO ACCEPT AN UNFAVORABLE SETTLEMENT
18 66. With the fraud Motion ruling looming, Ms. Michaels and Empowered Media were
19 stripped of all bargaining power and were forced into accepting an unfavorable settlement. During the
20 days following the Hearing, the parties met to discuss settlement terms. Among other things, Ms.
21 Michaels and Empowered Media had to agree to: (1) release their claim to all unpaid royalties,
22 including a claim to approximately $1.3 million in unpaid royalties being held in escrow; (2) pay
23
24 12 Moreover, soon after it was filed, the ThinCare Lawsuit was placed under seal due to the sensitive
25 nature of the parties contractual relationship and the negative perception that would be conveyed were
the public to know that the parties, who were in an endorser/endorsee relationship, were in a legal
26 dispute. Were the contract to be rescinded as ThinCares fraudulent inducement claim contemplated,
the legal basis for the seal would have been moot and the case would have become a matter of public
27 record.
28
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1 ThinCare $2.2 million dollars (with $1 million due within ninety days of execution of the settlement
2 agreement and the remainder due in less than a year); and (3) allow ThinCare to continue to
3 manufacture, market and sell various products bearing Ms. Michaels image until the spring of 2016
4 (well beyond what was originally agreed to in the ThinCare Agreement), without receiving a penny in
5 royalties on these ongoing sales.
6 67. After advising the court that a tentative settlement had been reached, the court took the
7 pending hearing and trial dates off the calendar. The parties then entered into a formal settlement
8 agreement (the Settlement).
9
DAMAGES SUFFERED AS A RESULT OF GREENBERG TRAURIGS NEGLINGENCE IN
10 NEGOTIATIONG THE THINCARE AND BL4 AGREEMENTS
11 68. All amounts paid and owed to ThinCare pursuant to the Settlement are damages directly
12 attributable to Greenberg Traurig and Markmans malpractice. But for Greenberg Traurig and
13 Markmans negligently-provided legal counsel regarding the ThinCare Agreement and BL4 Contract,
14 Ms. Michaels would not have been forced into the unfavorable Settlement. Greenberg Traurig and
15 Markmans professional negligence with respect to the false Warranties have accordingly damaged
16 Ms. Michaels in the amount according to proof in connection with the Settlement.
17 69. Greenberg Traurig and Markmans negligence also led to Ms. Michaels having to turn
18 down a lucrative licensing agreement in the spring of 2013. EM Ingestibles, LLC, a wholly-owned
19 subsidiary of Empowered Media, was finalizing an agreement with Midtown Equities, LLC
20 (Midtown) which would have allowed Midtown to use Ms. Michaels image in connection with
21 vitamins, supplements, and other non-weight-loss, ingestible products. The agreement called for
22 Midtown to pay Ms. Michaels an advance, provided for Ms. Michaels to receive a royalty on all net
23 sales of licensed product, allowed Ms. Michaels to terminate the agreement if the annual royalties were
24 below a certain amount for the first five years, and gave Ms. Michaels the option to extend for an
25 additional five years and to terminate the agreement thereafter if the annual royalties were less than a
26 certain amount. In other words, Ms. Michaels would have been guaranteed a substantial return over a
27
28
-20-
1 ten-year period. But due to Greenberg Traurig and Markmans negligence Ms. Michaels was unable to
2 enter into the deal with Midtown, foregoing the advance and royalties to follow.
3 70. In addition, Greenberg Traurig and Markmans malpractice and other breaches in
4 handling the ThinCare Agreement and BL4 Contract caused Ms. Michaels and Empowered Media to
5 incur substantial legal fees to defend themselves against ThinCares fraud allegations in an amount
6 according to proof.
7 71. As described above, Ms. Michaels and Empowered Media never would have entered
8 into the ThinCare Agreement, but for Greenberg Traurig and Markmans negligence in performing due
9 diligence on ThinCare and concealment of the conflicting provisions in the BL4 Contract and the
10 ThinCare Agreement. The ThinCare Agreement resulted in multiple class actions lawsuits being filed
11 against Ms. Michaels, as well as negative publicity. As a result, Ms. Michaels was turned down for a
12 daytime talk show she was negotiating with a major network. The lawsuits also delayed a deal between
13 Ms. Michaels and So Delicious Coconut Milk, causing Ms. Michaels to miss out on royalties during
14 the most successful phase of the product. Finally, the bad publicity and lawsuits arising from the
15 ThinCare Agreement resulted in a drastic drop in Ms. Michaels Q Score, preventing her from landing
16 a variety of potential business opportunities.
17 GREENBERG TRAURIG AND MARKMAN CONSIDERED THE FALSE WARRANTIES A

MERE TECHNICALITY
18
19 72. During the course of the ThinCare Lawsuitin fact while the briefing on the fraudulent
20 inducement Motion was pending before the CourtThinCare deposed Markman concerning, among
21 other things, Greenberg Traurig and Markmans role in the negotiation and drafting of the ThinCare
22 Agreement, and the inconsistencies between that agreement and the BL4 Contract. Markman was
23 asked specifically about the inconsistencies between the two agreements. His response was telling.
24 When asked whether the provisions of the BL4 Contract would preclude Ms. Michaels from
25 appearing or from making guest appearances during certain time frames, Markman responded: I
26 guess the -- to answer it -- technically, the answer is yes. In reality the answer is really no.
27
28
-21-
1 73. Whatever constitutes the reality of which Markman spoke, Ms. Michaels hired him to
2 advise her concerning the legal technicalities as to which he is so dismissive. The legal technicalities of
3 the ThinCare Agreement and the BL4 Contract led her to unwittingly violate the Warranties set forth in
4 the ThinCare Agreement. Mr. Markmans attitude toward these legal technicalities is distressing. The
5 deposition questioning went further:
6 Q: [By ThinCares counsel:] Lets start out with the first two sentences of
subparagraph B on page 4 of [the BL4 Contract]. It says Artist shall not render services
7 or appear on camera or off camera to any commercials, paren, including infomercials,
close paren, period. Notwithstanding the foregoing subjects to the conditions set forth in
8
paragraph 7AI and 7A5 above.
9 Artist may render services on one national commercial campaign during each
year hereunder subject to the reasonable approval of the television network to accompany
10 the granted initial broadcast rights to the series, the network with approval not to be
11 unreasonably withheld, close paren, semicolon. Do you see that?
A: [From Mr. Markman:] Yes.
12
Q: Is it fair to say that that provision would preclude Ms. Michaels from
13 appearing in two national commercial campaigns absent approval of NBC?
14 [...]
A: Again, Id say technically thats what it says, but in practice thats not how it
15
works.
16 Q: Let me have you turn back now to paragraph 11B of the [ThinCare
Agreement] in subparagraph 11B3. . . . It says Licensor has entered into no other
17 agreement or contract and is not subject to any order to create a ruling that would prohibit
18 licenser licensor from performing its obligations under this agreement or permitting
licensee to exercise the rights granted herein. Do you see that language?
19 A: Yes.
20 Q: As a technical matter, using your word technical, is that provision inconsistent
with the exclusivity provisions in [the BL4 Contract]?
21
[...]
22
A: I dont think so technically.
23 Q: And whys that?
24 A: Because in practice the way this -- the parties behave with one another on the
BL4 contract, it would not have, and I dont think it ever did interfere with the exercise of
25 the rights here.
26 Q: Now, youre talking about in practice; correct?
A: Yeah.
27
28
-22-
1 Q: What about simply technically? Aside from practice, as a technical matter,

aside from whatever happens in practice, is -- are the exclusivity provisions of [the BL4
2 Contract] inconsistent with the representations of licensor in the executed [ThinCare
Agreement]?
3
[...]
4
A: . . . I dont -- I dont think so for the reasons I stated. I think, one, in practice
5 this provision isnt handled this way.
Q: Its not handled that way by whom?
6
A: By network or production company.
7
Q: You would agree, would you not, that NBC had the right -- regardless to
8 whether exercise it or not, NBC had the right, under the exclusivity provision
paragraph of [the BL4 Contract], to tell Ms. Michaels that no, she could not appear in
9 more than one national advertising campaign?
10 [...]
11 A: Again, technically, thats what it says, but in reality thats not how its used.
Q: And with respect to any television commercials that were run for the licensed
12 products under the [ThinCare Agreement], did Empowered Media have to submit those
television commercials to NBC for approval?
13
[...]
14
A: I think we always showed them things, but it wasnt a matter of whether they
15 would approve them or not.
16 Q: Well, the exclusivity agreement of [the BL4 Contract] required [ThinCare-

related television commercials] to be submitted to NBC, didnt it?
17 [...]
18 A: . . . I think the same -- same answer applies.
19 Q: As a technical matter it required it?
A: Yeah, thats what it says.
20
Q: And continuing on in the exclusivity provision of [the BL4 Contract] and in
21 subparagraph B -- lets see. . . . It says At no time in the series term may artists appear in
a new commercial campaign while an old campaign in which artist appears is still being
22 broadcast. See that language?
23 A: Yes.
24 Q: Okay. Do you recall when, during the time frame that the [ThinCare
Agreement] was being negotiated, whether you ever disclosed to [legal counsel for
25 ThinCare] or any other representative of ThinCare that -- of the technical provisions of
the exclusivity provision in the BL4 contract[]?
26
A: Did I tell him?
27 Q: Yes, of the exclusivity provisions in [the BL4 Contract]?
28 A: I dont think they ever came up, no.
-23-
1 [...]
2 Q: . . . Do you know whether anybody from Empowered Media or on behalf of

Empowered Media or on behalf of Jillian Michaels ever provided a copy of the partially
3 executed document, [the BL4 Contract], or a copy of the fully executed [BL4 Contract] to
the ThinCare prior to the date that the [ThinCare Agreement] was executed?
4
A: I dont know, but I would assume the answers no.
5 74. Greenberg Traurig and Markmans position and attitude are clear: the inconsistency
6 between the Warranties and the BL4 Contractwhich ended up invoking a finding of summary
7 judgment for fraud, ending the Lawsuit, terminating Ms. Michaels claims against ThinCare, and
8 exposing her to millions of dollars in damages and the potential end of her careerwas a mere
9 technicality, apparently not important enough to raise with Ms. Michaels or ThinCare as they
10 negotiated the ThinCare Agreement, and apparently not even something that Ms. Michaels or
11 ThinCare should be allowed to see for themselves.
12 75. It was Greenberg Traurig and Markmans responsibility as legal counselnot Ms.
13 Michaels responsibilityto understand the technicalities and nuances of the agreements concerning
14 which it was advising Ms. Michaels, and to inform her concerning the same.
15 76. Indeed, Greenberg Traurig and Markman knew these provisions were not only
16 technically in conflict, but they were in actual conflict in practice as well. For example,
17 notwithstanding Markmans testimony above that this provision isnt handled this way By network
18 or production company, Markman was fully aware (at both the time he gave the testimony and the
19 time he advised Ms. Michaels to execute the BL4 Contract and the ThinCare Agreement) that the
20 network and production company indeed handled this provision this way in practice. In fact, on April 3
21 2009, during the very negotiations of the BL4 Contract and at the time of the negotiations of the
22 ThinCare Agreement, Markman was told, by email, that NBC would insist that Michaels could only
23 appear in 3 national commercial campaigns per year, and that they will not conflict with major
24 sponsors of [The Biggest Loser]. In other words, NBC was making explicit its intention to limit
25 approval of advertising involving Ms. Michaels to three national campaigns a year, and that it would
26 not approve any commercials that conflicted with major sponsors of The Biggest Loser, including any
27 competitors of ThinCare.
28
-24-
1 77. Furthermore, these conflicting provisions did in fact come into actual conflict in
2 practice in Ms. Michaels and Empowered Medias case, leading to the ThinCare Lawsuit.
3 78. Greenberg Traurig and Markmans failure to advise Ms. Michaels and Empowered
4 Media about these so-called technicalities, or to disclose the issue to ThinCare prior to execution of
5 the ThinCare Agreement, directly led to the Utah courts decision to grant the Motion, which would
6 have exposed Ms. Michaels to millions of dollars in damages and the end of her career. Naturally, she
7 thus accepted poor settlement terms, which, unfavorable though they were, were better than feeling the
8 full weight of the problems Greenberg Traurig and Markmans malpractice and negligence caused.
9 GREENBERG TRAURIG AND MARKMAN FAILED TO NEGOTIATE OR DRAFT

10 EFFECTUAL RIGHT TO AUDIT CLAUSES IN THE BL4 AND NBC CONTRACTS
11 79. During the representation, Greenberg Traurig and Markman negotiated and drafted
12 several television appearance contracts with NBC and BL4 on Ms. Michaels and Empowered Medias
13 behalf. Included in these contracts were provisions agreeing that Ms. Michaels would receive 5% of all
14 royalties for any merchandise, including DVDs, sold by NBC and its affiliates bearing her image.
15 These provisions should have entitled Ms. Michaels and Empowered Media to a significant income
16 stream. Unfortunately, this never happened because these contracts all lacked effectual right to audit
17 clauses.
18 80. Right to audit clauses are standard in talent contracts so that the talent can ensure that
19 he or she receives all money due under these contracts. However, in spite of being fully aware of this
20 (as specialists and experts in entertainment contract negotiation), Greenberg Traurig and Markman
21 failed to adequately protect their clients interests by negotiating and including effective right to audit
22 provisions. As a result, Ms. Michaels and Empowered Media were and are unable to access millions of
23 dollars due and owing them.
24 81. Notwithstanding what appeared to be massive sales of The Biggest Loser merchandise
25 bearing Ms. Michaels image, she never received a dime in royalties, as agreed in the television
26 appearance contracts. Thus, in 2012, Ms. Michaels and Empowered Media retained the accounting
27 firm KPMG, LLP to audit BL4 and NBC regarding these productions. Unfortunately, KPMG was not
28
-25-
1 able to access the actual source data behind the merchandise sales. As is industry custom, this source
2 data was kept by NBC and not provided to BL4. Though Greenberg Traurig and Markman included in
3 the BL4 and NBC agreements provisions giving Ms. Michaels and Empowered Media the right to
4 audit BL4, they failed to draft or negotiate provisions allowing Ms. Michaels and Empowered Media
5 to audit NBC. Greenberg Traurig and Markman knew or should have known that Ms. Michaels needed
6 the right to audit NBC in order for the right to audit provision to have any practical effect. Due to
7 Greenberg Traurig and Markmans negligence in falling to draft an adequate right to audit provision
8 allowing Ms. Michaels and Empowered Media to audit NBC, NBC contended that Ms. Michaels audit
9 rights stopped at BL4. As a result, KPMG could not get access to data showing the actual merchandise
10 sales.
11 82. Notwithstanding BL4 and NBCs reports of no royalties due and owing Ms. Michaels
12 and Empowered Media, all indications are that an audit of the source documentation would have
13 revealed millions in royalties due to Ms. Michaels and Empowered Media. For example, Mark Koops,
14 former Executive Produce of The Biggest Loser, claims that The Biggest Loser consumer products
15 program has generated over $150 million in spending with presence at more than 25,000 major
16 retailers to date. (http://triumentertainment.com/pages/about-us). Variety Magazine reported that
17 Mark Koops, exec producer and managing director of Reveille, says the show now generates a $50
18 million revenue stream from branded items ranging from scales to DVDs and books.
19 (http://variety.com/2009/scene/news/loser-a-marketing-winner-1117999880). And Brandchannel.com
20 reported that The feel-good melodrama of the show, its relentless sentimentality, has made The
21 Biggest Loser a programming hit -- not to mention a growing health-and-fitness consumer brand that
22 generates an estimated $100 million per year. There are Biggest Loser drink mixes, exercise balls,
23 cook books and much more. There is even the Biggest Loser Club, a sort of social media site for the
24 health and weight-loss conscious. (http://www.brandchannel.com/home/post/2009/11/30/Biggest-
25 Loser-Brand-Wins-Despite-NY-Times-Expose.aspx) (emphasis added).
26 83. As Ms. Michaels is far and away the most popular trainer in the history of The Biggest
27 Loser and is practically synonymous with the show, her image and likeness appeared prominently on
28
-26-
1 the vast majority of The Biggest Loser merchandising. Thus, Ms. Michaels was entitled to potentially
2 over $7,000,000.00 in royalties per year, in an amount according to proof; royalties she would have
3 been able to obtain through her audit rights but for Greenberg Traurig and Markmans negligent
4 contract drafting and negotiation.
5 84. Bringing litigation against NBC in order obtain the audit she would have had, but for
6 Defendants negligence, was both infeasible and harmful to Ms. Michaels career. In order to recover
7 her contractually due royalties, she would have had to sue NBC (network of the Biggest Loser) just to
8 get the audit information she would have had absent Defendants malpractice, essentially biting the
9 hand that feeds her. The damage to this important relationship could have been devastating to her
10 career. The whole purpose of such audit provisions is to prevent Plaintiff from having to sue at all.
11 Such litigation against NBC would have been prohibitively costly and may not have been successful
12 due to Defendants malpractice.
13 GREENBERG TRAURIG AND MARKMAN FAILED TO PROTECT AND PURSUE MS.

14 MICHAELS RIGHTS AGAINST LIVE NATION
15 85. In early 2013, Greenberg Traurig, Markman, and Greenberg Traurig Shareholder and
16 L.A. Entertainment Practice Founder Jay Cooper negotiated a contract on behalf of Ms. Michaels with
17 the entertainment company Live Nation, for Ms. Michaels to appear in The 2013 Maximize Your Life
18 Tour (the Live Nation Agreement). The Live Nation Agreement contemplated that Ms. Michaels
19 would receive, $30,000 x 33 shows, plus 70% of Producer Pool Profits up to $5,000,000, and 80% of
20 Producer Pool Profits over $5,000,000, for a minimum of $1,020,000. Ms. Michaels talent fees were
21 thus completely at the whim of the overall budget for the shows. This budget was largely outside of
22 Ms. Michaels control.
23 86. As the tour progressed, it became clear that Live Nation was manipulating the overall
24 budget in order to minimize the royalties Live Nation would have to pay to Ms. Michaels. Specifically,
25 Live Nation deliberately forecast a budget well below what Live Nation knew the tour would cost and
26 purposely left out language about overages in the contract. Once the tour progressed, Live Nation
27
28
-27-
1 inflated the costs. When Ms. Michaels confronted Live Nation President Bob Cayne about this
2 manipulation, he said that there is nothing in the contract saying that he could not do it.
3 87. This is a common and well-known trick in the touring business, a trick that Greenberg
4 Traurig, Markman, and Cooper, as specialists in entertainment law, should have been well aware of
5 and should have protected their clients against. Yet they did nothing in drafting or negotiating the Live
6 Nation Agreement to protect Ms. Michaels from this likely and eventual scenario.
7 88. Ms. Michaels only ended up receiving $673,884.34 under the Live Nation Agreement,
8 hundreds of thousands of dollars less than the minimum of what she should have received.
9 89. Even when Ms. Michaels approached her own attorneys at Greenberg Traurig about
10 getting the protections and compensation she should have had under the Live Nation Agreement,
11 Greenberg Traurig did nothing. Instead, Paul Schindler, partner and Senior Chair of Entertainment and
12 Media Practice at Greenberg Traurig, informed Ms. Michaels and Empowered Media that he did not
13 want to rattle the Live Nation cage. Live Nation is a major client of Greenberg Traurigs. Live
14 Nation also does business with many of Greenberg Traurigs clients.
15 90. Greenberg Traurig and Markman failed to disclose these conflicts of interest in writing
16 as required by law. Specifically, California Rules of Professional Conduct Rule 3-310, Avoiding the
17 Representation of Adverse Interests, (B) provides:
18 A member shall not accept or continue representation of a client without providing

19 written disclosure to the client where:
(1) The member has a legal, business, financial, professional, or personal
20 relationship with a party or witness in the same matter; or
21 (2) The member knows or reasonably should know that:
22 (a) the member previously had a legal, business, financial, professional, or
personal relationship with a party or witness in the same matter; and
23 (b) the previous relationship would substantially affect the member's
24 representation; or
(3) The member has or had a legal, business, financial, professional, or personal
25 relationship with another person or entity the member knows or reasonably should
26 know would be affected substantially by resolution of the matter.
27
28
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1 91. In addition, Greenberg Traurig and Markman violated California Rules of Professional
2 Conduct Rule 3-310(C) by failing to obtain written consent from Ms. Michaels when they represented
3 more than one client in a single matter in which the interests of Ms. Michaels potentially and actually
4 conflicted with the interests of Live Nation, and when they represented Live Nation and Ms. Michaels
5 simultaneously in matters where their interests were adverse. Greenberg Traurig and Markman
6 intentionally failed to disclose the conflict of interest because they wanted to enrich themselves by
7 representing both clients.
8 FIRST CAUSE OF ACTION
9 (Legal Malpractice/Professional Negligence against all Defendants)
10 92. Plaintiffs refer to and incorporate herein the General Allegations stated in
11 Paragraphs 1 through 91 alleged herein above, and make them a part hereof as though set forth at
12 length.
13 93. On July 9, 2013, the day after the hearing in the ThinCare Lawsuit, Plaintiffs instructed
14 Greenberg Traurig and Markman, via a telephone call, to stop all work on all of Plaintiffs matters.
15 94. On August 22, 2013, Plaintiffs formally terminated Greenberg Traurig and Markman as
16 their attorneys.
17 95. Defendants and each of them were in an attorney-client relationship with plaintiffs Ms.
18 Michaels and Empowered Media at all relevant times and during the events described herein up until at
19
least July 8, 2013, and through August 22, 2013, at the latest. While the parties to this litigation were
20
trying to resolve this dispute without litigation, in order to facilitate potential settlement and allow
21
time for the parties to negotiation, Defendants and Plaintiffs entered into a tolling agreement on July 6,
22
2014. This tolling agreement had an effective date of July 8, 2014one day before the statute of
23
24 limitations would have run at the earliest from the July 9, 2013 date that Plaintiffs told Defendants to
25 stop work on the matters underlying this litigation. Id. This date of July 8, 2014 was specifically
26 chosen by the parties because it was one day before the statute would run, based on the mutual
27
understanding of Defendants and Plaintiffs that Defendants were told to stop work on July 9, 2013.
28
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1 This tolling agreement was set to expire July 8, 2015. Because settlement negotiations continued, on
2 July 6, 2015, the parties entered into an Amendment to the Tolling Agreement extending the tolling
3
agreement to January 15, 2016. This was later extended by mutual agreement of the parties to July 8,
4
2016. On July 7, 2016 Plaintiffs filed their initial complaint in this matter
5
96. Defendants held themselves out to be, and are in fact, specialists and experts in their
6
fields, including the fields of entertainment law and talent contract negotiation.
7
97. Defendants, and each of them, had a duty to use such skill, prudence, and diligence as
8
members of the legal profession commonly possess and exercise, in providing legal services to
9
plaintiffs.
10
98. In addition, defendants had the duty to use such skill, prudence, and diligence as is the
11
standard of care for a specialist in these fields.
12
99. Defendants, and each of them, failed to exercise reasonable care and skill in their
13
representation of plaintiffs by negligently and carelessly doing all of the acts and omissions as herein
14
alleged.
15
100. In each of these acts, describe above, all defendants failed to use such skill, prudence,
16
and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the
17
performance of the tasks which defendants undertook.
18
101. In addition, defendants failed to live up to the standard of care, skill, prudence, and
19
diligence exercised by other specialists of ordinary skill and capacity specializing in the same fields.
20
102. In addition, defendants violated California Rules of Professional Conduct Rule 3-110
21
(Failing to Act Competently), by intentionally, recklessly, and repeatedly failing to perform legal
22
services with competence.
23
103. The conduct of the defendants, and each of them, in doing the acts and omissions herein
24
alleged directly resulted in damages and harm to plaintiffs as set out herein.
25
104. Had plaintiffs been properly informed and advised of the conflicting contractual
26
provisions in in the BL4 and ThinCare Agreements and their legal ramifications, plaintiffs would not
27
28
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1 have entered into either or both of the agreements to avoid breaching the Warranties and avoid liability
2 for fraud in the inducement.
3 105. Had plaintiffs been properly advised of the need for a right to accounting provision in
4 the BL4 and NBC television appearance agreements, or had Greenberg Traurig and Markman
5 negotiated the standard accounting provision, plaintiffs would have been able to obtain tens (and
6 possibly hundreds) of millions in dollars in royalties for the merchandise sold bearing Ms. Michaels
7 likeness.
8 106. Had defendants properly advised Ms. Michaels regarding common touring company
9 budget tricks, or had defendants drafted provisions to adequately protect Ms. Michaels from these
10 tricks, Ms. Michaels would have received, at a minimum, hundreds of thousands of dollars in
11 additional royalties owed to her.
12 107. In addition to their other breaches, defendants failed to comply with State Bar Act,
13 California Business & Professions Code 6147(a), by entering into a contingent fee agreement with
14 plaintiffs that was never in writing, did not include the items enumerated in the statute, was not given
15 to plaintiffs, was not signed by the attorney defendants, and was not signed by Ms. Michaels,
16 Empowered Media, or their representatives.
17 108. In addition, defendants violated Rule 3-310 of the Rules of Professional Conduct by
18 representing plaintiffs in the ThinCare Lawsuit without disclosing that defendants had an actual and
19 potential conflict of interest with their clients and that defendants had legal, business, financial, and
20 professional interests in the ThinCare Lawsuit. Namely, ThinCares cause of action for fraudulent
21 inducement, and related allegations had direct, damning, and potentially costly implications for
22 Greenberg Traurig and Markman. These implications placed Greenberg Traurigs interests in avoiding
23 liability, publicity, and exposure for malpractice directly adverse to the interests of their clients.
24 109. Such failure to provide any disclosure, much less written disclosure, was a direct
25 violation of Rule 3-310 of the Rules of Professional Conduct.
26 110. In doing the things herein alleged, Greenberg Traurig and Markman intentionally put
27 their own financial interests and gain (realized by lucrative contingent fees), ahead of the interests of
28
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1 their clients in avoiding liability, litigation, attendant legal fees, and the other damages described
2 above.
3 111. As a direct result of defendants actions as alleged herein, plaintiffs incurred substantial
4 liability, unnecessary fees and costs, lost royalties, and other damages in an amount subject to proof,
5 including the damages described above.
6 112. Defendants continued in their attorney-client relationship with plaintiffs, in ongoing
7 representation regarding each of the specific subject matters described herein, until plaintiffs
8 terminated defendants in August of 2013, upon discovering the extent of their malpractice. Until at
9 least July of 2013, defendants continued to advise plaintiffs regarding the ThinCare, BL4, NBC, and
10 Live Nation agreements, including participation in and oversight over the Lawsuit arising out of the
11 ThinCare Agreement, and communications and advice regarding the same and other of activities in
12 furtherance of the ongoing mutual relationship.
13 SECOND CAUSE OF ACTION
14 (Breach of Fiduciary Duty against all Defendants)
15 113. Plaintiffs refer to and incorporate herein the allegations in paragraphs 1 through 112
16 alleged herein above, and make them a part hereof as though set forth at length.
17 114. Defendants, as attorneys for plaintiffs, were duty bound to act with the utmost good
18 faith for the benefit of plaintiffs and had a fiduciary duty to preserve, serve, and protect plaintiffs
19 interests, rights, and opportunities and to perform the services for which they were retained with
20 reasonable care and skill, to act in plaintiffs highest and best interests at all times, and to not expose
21 plaintiffs to any unnecessary risk or peril.
22 115. This fiduciary and confidential relationship was never repudiated by defendants at any
23 time herein mentioned.
24 116. Defendants, by virtue of the actions and failures to act described hereinabove, breached
25 said fiduciary duties.
26
27
28
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1 117. As an actual and proximate result of defendants' breach of fiduciary duties described
2 above, plaintiffs have been injured, including in the ways described above, in an amount to be proven
3 at trial.
4 118. In breaching said fiduciary duties, defendants acted with oppression, fraud, or malice.
5 THIRD CAUSE OF ACTION
6 (Breach of Contract against all Defendants)
7 119. Plaintiffs incorporate by reference paragraphs 1 through 118 as though fully set forth
8 herein.
9 120. The parties entered into an oral agreement wherein it was agreed that defendants would
10 provide competent and effective legal representation to plaintiffs in the matters described above in
11 exchange for a contingent fee of five percent (5%) gross of all contracts negotiated by defendants.
12 121. Plaintiffs did all of the things that the oral contract required them to do including
13 payment of the contingent fees to defendants.
14 122. All of the conditions required by the oral contract for defendants performance had
15 occurred and/or were excused.
16 123. Defendants failed to provide competent and effective legal representation through the
17 multiple acts of malpractice, negligence, breaches of fiduciary duty, and other breaches described
18 above.
19 124. As a result of defendants failure to provide competent and effective legal
20 representation, plaintiffs were harmed in the ways described above, in an amount according to proof.
21 125. Due to defendants persistent and prolonged concealment, plaintiffs did not become
22 aware of all of defendants breaches until April 2013. As described above, defendants breaches were
23 in secret and these breaches, as well as the harm flowing from these breaches, were not reasonably
24 discoverable by plaintiffs until this time.
25 FOURTH CAUSE OF ACTION
26 (For a Declaration Voiding and Rescinding the Greenberg Traurig Contingent Fee Agreement
27 against all Defendants)
28
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2 herein.
3 127. In addition to their other breaches, defendants failed to comply with State Bar Act,
4 California Business & Professions Code 6147(a), which provides that:
5 An attorney who contracts to represent a client on a contingency fee basis shall, at the
6 time the contract is entered into, provide a duplicate copy of the contract, signed by both
the attorney and the client, or the clients guardian or representative, to the plaintiff, or to
7 the clients guardian or representative. The contract shall be in writing and shall include,
but is not limited to, all of the following:
8
(1) A statement of the contingency fee rate that the client and attorney have agreed upon.
9
10 (2) A statement as to how disbursements and costs incurred in connection with the
prosecution or settlement of the claim will affect the contingency fee and the clients
11 recovery.
12 (3) A statement as to what extent, if any, the client could be required to pay any
compensation to the attorney for related matters that arise out of their relationship not
13
covered by their contingency fee contract. This may include any amounts collected
14 for the plaintiff by the attorney
15
128. The contingent fee agreement between defendants and plaintiffs was never in writing,
16
did not include the items enumerated in the statute, was not given to plaintiffs, was not signed by the
17
attorney defendants, and was not signed by Ms. Michaels, Empowered Media, or their representatives.
18
129. Defendants also failed to comply with Rule 4-200 of the Rules of Professional Conduct,
19
which provides in pertinent part that members of the State Bar, shall not enter into an agreement for,
20
charge, or collect an illegal or unconscionable fee. The contingent fees agreed to and collected by
21
defendants are and were unconscionable under the factors of Rule 4-200, including (a) the amount of
22
the fees in proportion to the services contemplated to be performed and actually preformed, (b) the
23
relative sophistication of defendants and plaintiffs, (c) the amount involved and the results obtained,
24
and (d) the nature and length of the professional relationship between defendants and plaintiffs, among
25
others.
26
130. Defendants also failed to disclose the conflicts of interest arising from their
27
simultaneous representation of Live Nation in negotiating the Live Nation Agreement under their
28
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1 contingent fee agreement in writing as required by California Rules of Professional Conduct Rule 3-
2 310 Avoiding the Representation of Adverse Interests (B).
3 131. In addition, defendants violated California Rules of Professional Conduct Rule 3-
4 310(C) by failing to obtain written consent from Ms. Michaels when they represented more than one
5 client in a single matter in which the interests of Ms. Michaels potentially and actually conflicted with
6 the interests of Live Nation, and when they represented Live Nation and Ms. Michaels simultaneously
7 in matters where their interests were adverse.
8 132. Given the violations of 6147(a), Rule 3-310(B), Rule 3-310(C), Rule 4-200, and the
9 fiduciary and ethical obligations of defendants, the only appropriate remedy is to void and rescind the
10 contingent fee agreement, and to compel defendants disgorge and return to plaintiffs all fees paid them
11 under the void agreement by plaintiffs, together with pre- and post-judgment interest as appropriate.
12 133. Plaintiffs are entitled to an accounting by defendants of all monies paid by plaintiffs
13 under the invalid contingent fee agreement.
14 FIFTH CAUSE OF ACTION
15 (For a Declaration Voiding and Rescinding the Greenberg Traurig Litigation Agreement against
16 Defendant Greenberg Traurig)
18 herein.
19 135. In or around January 2011, Ms. Michaels and Empowered Media retained Greenberg
20 Traurig for their defense of the ThinCare Lawsuit.
21 136. At the time they were retained to defend Ms. Michaels and Empowered Media,
22 Greenberg Traurig and Markman had an actual and potential conflict of interest with their clients, Ms.
23 Michaels and Empowered Media. Namely, ThinCares cause of action for fraudulent inducement, and
24 related allegations had direct, damning, and potentially costly implications for Greenberg Traurig and
25 partner/shareholder Markman. These implications placed Greenberg Traurig and Markmans interests
26 in avoiding liability, publicity, exposure for negligence and malpractice directly adverse to the interests
27 of their clients. For these reasons, Greenberg Traurig and Markman had legal, business, financial, and
28
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1 professional interests in the ThinCare Lawsuit. Nevertheless, Greenberg Traurig and Markman failed
2 to disclose these interests and this actual and potential conflict to their clients, Ms. Michaels and
3 Empowered Media, or obtain their consent to the representation.
4 137. Such failure to provide any disclosure, much less written disclosure, was a direct
5 violation of Rule 3-310 of the Rules of Professional Conduct which provides:
6 (B) A member shall not accept or continue representation of a client without

providing written disclosure to the client where:
7
[ ]
8 (4) The member has or had a legal, business, financial, or professional
9 interest in the subject matter of the representation
10 138. Had Ms. Michaels and Empowered Media been made aware of these interests and this
11 conflict, they would have chosen more impartial, disinterested counsel to represent them in the
12 ThinCare Lawsuit.
13 139. Indeed, Greenberg Traurig and Markman acted in ways that were in conflict with and
14 detrimental to their clients. For example, Greenberg Traurig and Markman continued to conceal these
15 significant problems from Ms. Michaels and Empowered Media when they disclosed the existence of
16 the claim for fraudulent inducement but intentionally failed to disclose the underlying problem of the
17 conflicting provisions, telling plaintiffs that the fraudulent inducement claim was not a problem for
18 you.
19 140. Given the violations of Rule 3-310 and the fiduciary and ethical obligations of
20 defendants, the only appropriate remedy is to void and rescind the ThinCare Litigation retainer
21 agreement, and to compel defendants to disgorge and return to plaintiffs all fees paid them by plaintiffs
22 under the void agreement, together with pre- and post-judgment interest as appropriate.
23 141. Plaintiffs are entitled to an accounting by defendants of all monies paid by plaintiffs
24 under the invalid ThinCare Litigation retainer agreement.
25 SIXTH CAUSE OF ACTION

26 (Unfair Business Practices in Violation of California Business and Professions Code section
27 17200 et seq. against all Defendants)
28
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1 142. Plaintiffs incorporate herein paragraphs 1 through 141 above as if set forth fully herein.
2 143. Defendants, by virtue of the actions and failures to act described above, committed
3 violations of California Business and Professions Code section 17200 et seq. by repeatedly engaging in
4 unlawful, unfair, and fraudulent business acts and practices at plaintiffs expense.
5 144. As an actual and proximate result of defendants violation of said Business and
6 Professions code section 17200 et seq., plaintiffs have been injured in an amount to be proven at trial.
7 145. In violating these Business and Professions Code section 17200 et seq., defendants
8 acted with oppression, fraud, or malice.
9 146. Plaintiffs are entitled to restitution of their damages resulting from defendants unfair
10 business practices, in an amount according to proof, as a result of these unlawful, unfair, and
11 fraudulent practices.
12 SEVENTH CAUSE OF ACTION
13 (Negligent Misrepresentation against all Defendants)
16 148. Defendants were fully aware of the existence of and the legal effect of the conflicting
17 contractual provisions between the ThinCare and BL4 agreements.
18 149. Defendants represented to plaintiffs that they should enter into both the ThinCare
19 Agreement and the BL4 Contact, and that these agreements were not in conflict with one another.
20 Defendants failed to disclose the existence and nature of these conflicting provisions to plaintiffs.
21 150. Defendants representations were not true.
22 151. Defendants had no reasonable grounds for believing that their representations (that
23 plaintiffs should enter into both the ThinCare Agreement and that the BL4 Contract or that these
24 agreements were not in conflict with each other) were true at the time defendants made the
25 representations. Even though defendants knew that technically, the answer is yes, the ThinCare
26 Agreement and BL4 Contract do conflict with each other, defendants represented to plaintiffs that
27 there was no problem in executing both agreements.
28
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1 152. Defendants intended that plaintiffs rely on these representations in order to secure
2 lucrative contingent fees for themselves from both agreements.
3 153. Plaintiffs reasonably relied on defendants representations in entering into both the
4 ThinCare Agreement and the BL4 Contract on advice of counsel. By virtue of not having access to the
5 entire agreements, plaintiffs did not know of and could not have discovered the existence of the
6 concealed conflicting clauses. In addition, by virtue of these conflicting clauses and Warranties being
7 legal in nature, plaintiffs could not have discovered their meaning or effect without competent advice
8 from counsel. Plaintiffs reasonably relied on the representations and advice of their own attorneysthe
9 Defendantsin executing the ThinCare Agreement and the BL4 Contract. Had plaintiffs been aware
10 of the conflicting provisions in the BL4 and ThinCare agreements, plaintiffs would not have signed or
11 entered into both or either of the agreements, in order to avoid culpability for fraud in the inducement.
12 154. Plaintiffs were harmed, and plaintiffs reliance on defendants representations was both
13 a substantial factor and direct cause resulting in plaintiffs injuries in the manners described above.
14 EIGHTH CAUSE OF ACTION
15 (Fraudulent Concealment and Representations)
18 156. Defendants have engaged in fraud, by affirmative false representations as well as by
19 concealment and nondisclosure.
20 157. More specifically, as noted above, defendants provided plaintiffs with only execution
21 pages of the BL4 Contract and Thincare Agreement but concealed the rest of those agreements which
22 thereby concealed the material fact that the agreements contained conflicting provisions.
23 158. In addition, defendants concealed their concurrent, conflicting representation of Live
24 Nation, and their resulting knowledge that the deductions from royalties under plaintiffs agreement
25 with Live Nation would be much higher than defendants disclosed to plaintiffs, constituting both
26 fraudulent concealment and affirmative fraudulent representations. The fact that defendants had a
27 concurrent, conflicting representation of Live Nation, and the fact that Live Nations deductions would
28
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1 be much higher than defendants assured plaintiffs, were material, and had plaintiffs known of these
2 material facts, the agreement with Live Nation would not have been consummated at all, or at least in
3 the form in which it was consummated.
4 159. Furthermore, defendants concealed another legal conflict of interest, namely that their
5 representation of plaintiffs in defending against the Thincare Lawsuit was itself a conflict of interest
6 since defendants own interests in avoiding liability, publicity, and exposure for fraud and malpractice
7 were directly adverse to the interests of plaintiffs as their clients in the lawsuit. Such conflict of
8 interest was material, and had plaintiffs known of this concealed material fact, they would not have
9 agreed to have defendants represent them for that lawsuit.
10 160. Defendant Markman also deliberately falsely represented that there was never a BL4
11 Contract, and defendants also deliberately falsely represented that they created a testamentary trust for
12 which plaintiff Michaels paid a substantial fee. Both of these false representations were material.
13 161. As attorneys ostensibly representing plaintiffs, defendants had a fiduciary relationship
14 with plaintiffs, and therefore had a duty to disclose all of the above material facts, and all other
15 material facts set forth earlier in this Complaint, that defendants concealed, and further had a duty to
16 not make the above affirmative false representations.
17 162. Plaintiffs were unaware of these concealed material facts, and were unaware of the
18 falsity of affirmative material representations such as noted above regarding the expected amount of
19 Live Nation deductions from royalties, and would have acted as they did had they been otherwise
20 aware of these facts.
21 163. Defendants concealment of material facts, and affirmative false representation of
22 material facts, caused plaintiffs to sustain substantial damage, at a minimum in amounts noted above
23 and to be further proven at trial.
24 NINTH CAUSE OF ACTION
25 (Violations of the Lanham Act 15 U.S.C. Section 1125 et seq. )
28
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1 165. Plaintiffs have built a trusted and valuable reputation and brand.
2 166. Defendants advertising and promotion of its own legal services touts defendants as
3 one of the preeminent, international multidisciplinary entertainment and media practices, and that
4 they received the Outstanding Media & Entertainment Law Firm Award recognizing the best media
5 and entertainment practice at a major firm. Defendants represented to plaintiffs that defendants
6 would act as attorneys for plaintiffs by agreeing to represent plaintiffs in connection with contract
7 negotiations for the BL4 Contract, Thincare Agreement, and Live Nation agreement, in connection
8 with creating the testamentary trust, and in connection with defending plaintiffs in the Thincare
9 Lawsuit.
10 167. Such representations that they would act as plaintiff attorneys were in connection with
11 defendants advertising, promotion, offer for sale, sale, and rendering of legal services, and hence were
12 made in commerce and in interstate commerce.
13 168. Defendants advertising, promotion, offer for sale, sale, and rendering of legal services,
14 and their representations that they would act as plaintiffs attorneys, leading to plaintiffs engagement
15 of defendants as their attorneys, necessarily included at least by implication representations that
16 defendants would comply with all legal and ethical requirements in representing plaintiffs - including
17 without limitation that their affiliation with plaintiffs would be such that they would not be
18 representing other entities that have interests adverse to plaintiffs, and that defendants would instead
19 represent plaintiffs best interests, and only plaintiffs interests, and would do so not merely
20 competently but as renowned, recognized legal experts.
21 169. These representations were material, and were likely to, and in fact did cause,
22 confusion, mistake and deception for plaintiffs since, as noted above and below, defendants instead
23 were affiliated with entities with interests adverse to plaintiffs, did not represent the best interests of
24 plaintiffs or only plaintiffs interests, and did not represent plaintiffs in an expert or even competent
25 manner.
26 170. As noted above, defendants engaged in multiple instances of deliberate false
27 representation, both affirmatively and by omission and concealment. For example, Defendants
28
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1 provided Plaintiffs with signature pages for the BL4 Contract and ThinCare Agreement, but omitted
2 and concealed the remaining pages that would have demonstrated the conflicting provisions in those
3 agreements. Such omission was material, and was likely to, and in fact did, cause confusion, mistake,
4 and deception for plaintiffs as to the nature of the agreements, which themselves constituted both legal
5 services and legal products, including without limitation that the agreements do not contain conflicting
6 provisions, when in fact they did.
7 171. Defendants also deliberately concealed their concurrent, conflicting representation of
8 Live Nation. Such omission was material, and was likely to, and in fact did, cause confusion, mistake
9 and deception for plaintiffs as to defendants affiliation with plaintiffs and with Live Nation, including
10 that defendants had no conflict of interest in representing plaintiffs adverse to Live Nation, did not also
11 represent Live Nation, and was acting in compliance with their ethical and fiduciary duties, including
12 their duty of undivided loyalty to plaintiffs and duty to avoid the appearance of impropriety.
13 172. Defendants also deliberately affirmatively made false representations in advising
14 plaintiffs as to the amount of revenue they should reasonably expect from the Live Nation agreement,
15 since defendants knew of Live Nations accounting practices that would result in materially less
16 revenue under that agreement than defendants represented to plaintiffs. This was material, and was
17 likely to, and in fact did, cause confusion, mistake and deception for plaintiffs as to the nature of the
18 Live Nation agreement, which itself constituted a legal service and legal product.
19 173. Defendants also deliberately concealed their own conflict of interest in representing
20 Plaintiffs in the ThinCare Lawsuit, namely that its representation of plaintiffs in defending against the
21 Thincare Lawsuit itself was a conflict of interest since defendants own interests in avoiding liability,
22 publicity and exposure for fraud and malpractice were directly adverse to the interests of plaintiffs as
23 their clients. Such omission was material.
24 174. Defendants made a deliberate false representation that there was never a BL4 Contract,
25 Such false representation was material.
26 175. Defendants made a deliberate false representation that they had set up a testamentary
27 trust, for which Michaels paid a substantial fee. Such false representation was material.
28
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1 176. In all of these instances, Defendants deliberate concealment and affirmative false
2 representations fraudulently induced Plaintiffs to enter into the BL4 Contract, ThinCare Agreement,
3 and Live Nation agreement, and to continue to retain, and to pay, Defendants for work on the
4 agreements and to defend against the Thincare Lawsuit, all of which resulted in substantial monetary
5 and reputational injury to Plaintiffs. All of these instances also rendered false defendants
6 representation that it would act as attorneys for plaintiffs, and therefore would do so in compliance
7 with their legal, ethical and fiduciary obligations to plaintiffs, would not affiliated as attorneys for any
8 entities with adverse interests, and would represent plaintiffs best interests in an expert and certainly
9 at least competent manner.
10 177. All of defendants false representations, whether affirmative or by concealment, are
11 violations of the Section 43(a) of the Lanham Act, and all were willful.
12 178. Plaintiffs suffered substantial competitive injury to themselves as a result of
13 Defendants misrepresentations, in the form of actual damages and damage to Plaintiffs business
14 reputation, including damages to Plaintiffs trusted and valuable reputation and brand.
15
16 WHEREFORE, plaintiffs Jillian Michaels and Empowered Media, LLC pray for
17 judgment against defendants Greenberg Traurig, LLP, David P. Markman, and Does 1 through 100,
18 and each of them, as follows:
19 As to the First Cause of Action
20 1. For actual and consequential damages in a sum in excess of $10,000,000.00, in an
21 amount according to proof;
22 2. For interest as allowed by law;
23 3. For costs of suit incurred herein; and
24 4. For such other and further relief as the Court deems just and proper.
25 As to the Second Cause of Action:
26 1. For recovery of the fees and/or commissions paid to defendants according to proof;
27
28
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3 3. For exemplary damages in a an amount according to proof;
5 5. For costs of suit herein incurred; and
6 6. For such other and further relief as the court may deem proper.
7 As to the Third Cause of Action:
10 2. For lost profits according to proof;
12 4. For the costs of suit herein; and
14 As to the Fourth Cause of Action:
15 1. For a declaration that the contingent fee agreement between Greenberg Traurig and
16 Markman, on the one hand, and Ms. Michaels and Empowered Media, on the other hand, is void and
17 rescinded;
18 2. For an order compelling defendants to provide plaintiffs with an accounting of all
19 money received by them under the void contingent fee agreement;
20 3. For an order compelling defendants to return to plaintiffs any and all fees paid to
21 defendants pursuant to the contingent fee agreement;
25 As to the Fifth Cause of Action:
26
27
28
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1 1. For a declaration that the ThinCare Litigation fee agreement between Greenberg
2 Traurig, on the one hand, and Ms. Michaels and Empowered Media, on the other hand, is void and
3 rescinded;
4 2. For an order compelling defendants to provide plaintiffs with an accounting of all
5 money received by them under the void contingent fee agreement;
6 3. For an order compelling defendants to return to plaintiffs any and all fees paid to
7 defendants pursuant to ThinCare Litigation fee agreement;
11 As to the Sixth Cause of Action:
12 1. For restitution of all sums paid by plaintiffs to defendants as result of defendants
13 unlawful, unfair, or fraudulent practices;
15 3. For costs of suit herein incurred; and
17 As to the Seventh Cause of Action:
20 2. For lost profits according to proof;
24 As to the Eighth Cause of Action:

27
2. For lost profits according to proof;
28
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1 3. For punitive damages;

3
5. For the costs of suit herein; and
4
6. For such other and further relief as the court may deem proper.
5
As to the Ninth Cause of Action:
6
1. For actual and consequential damages in a sum in excess of $10,000,000.00, in an
7
amount according to proof;
8
2. For treble damages in a sum in excess of $30,000,000.00, in an amount according to
9
proof;
10
3. Defendants profits attributable to Defendants misrepresentations, fraud, and violations
11
of the Lanham Act, and an increase is such an award;
12
4. For the costs of suit;
13
5. For Plaintiffs attorneys fees in an amount according to proof; and
14
6. For such other and further relief as the court may deem proper.
15
16
JURY DEMAND
17
Plaintiffs demand a jury trial on all causes of action so triable.
18
19
20
DATED: February 1, 2017 LAW OFFICE OF JACK FITZGERALD, PC
21 PRICE, PARKINSON, & KERR, PLLC
22
23
24
By:____________
25 Jack Fitzgerald
26 Counsel for Jillian Michaels and Empowered
Media, LLC
27
28
-45-
THE LAW OFFICE OF JACK FITZGERALD, PC

1 Jack Fitzgerald (257370)
2 Hillcrest Professional Building
3636 Fourth Ave., Ste. 202
3 San Diego, CA 92101
Telephone: (619) 692-3840
4 Facsimile: (619) 362-9555
5 PRICE PARKINSON & KERR, PLLC
Jason M. Kerr (Pro Hac Vice pending)
6 Ronald F. Price (Pro Hac Vice pending)
5742 West Harold Gatty Drive
7 Salt Lake City, UT 84116
8 Telephone: (801) 530-2900
Facsimile: (801) 530-2957
9
Attorneys for Plaintiffs
10 JILLIAN MICHAELS AND EMPOWERED MEDIA, LLC
11
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES
13
14 JILLIAN MICHAELS and EMPOWERED MEDIA,

LLC,
15 Case No: SC126100
16 Plaintiffs,
v.
17
GREENBERG TRAURIG, LLP, and DAVID P. PROOF OF SERVICE OF SECOND
18 MARKMAN, and DOES 1-100, AMENDED COMPLAINT
19 Defendants.
20
21
22
23
24
25
26
27
28 JILLIAN MICHAELS ET AL. V. GREENBERG TRAURIG, ET AL., CASE NO. SC126100
PROOF OF SERVICE
1 Proof of Service
2 I am over the age of 18 and not a party to this action. My business address is 3636 Fourth Ave., Suite 202,
3 San Diego, CA 92103. I am a resident of or employed in the county where the mailing occurred.
5 I hereby certify that, on February 1, 2017, a true and correct copy of the foregoing
SECOND AMENDED COMPLAINT FOR:
6
1. LEGAL MALPRACTICE
7 2. BREACH OF FIDUCIARY DUTY
3. BREACH OF CONTRACT
8 4. DECLARATORY RELIEF
5. DECLARATORY RELIEF
9 6. UNFAIR BUSINESS PRACTICES
7. NEGLIGENT MISREPRESNTATION
10
8. FRAUDELENT CONCEALMENT
11 9. VIOLATIONS OF THE LANHAM ACT
12 PROOF OF SERVICE
13 was served on defendants Greenberg Traurig, LLP and David P. Markman via United States mail by placing
14 the document(s) in an envelope, with postage fully prepaid, deposited in a United States Mailbox and
15 addressed to their respective attorney(s) of record as follows:
16
JENNER & BLOCK LLP
17 Attn: Michael P. McNamara
Attn: Kirsten H. Spira
18 633 West 5th St., Suite 3600
Los Angeles, CA 90071-2054
19
20
DATED: February 1, 2017
21
Trevor M. Flynn
22
23 I further certify that the original of this document has been signed and that the signed document is available
24 for inspection and copying at the request of the court or any other party.
25
26 /s/ Trevor Flynn

Trevor Flynn
27
28 JILLIAN MICHAELS ET AL. V. GREENBERG TRAURIG, ET AL., CASE NO. SC126100
PROOF OF SERVICE

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Case 2:17-cv-01645 Document 1-34 Filed 03/01/17 Page 1 of 48 Page ID #:429

1 THE LAW OFFICE OF JACK FITZGERALD, PC

5 PRICE PARKINSON & KERR, PLLC

12 SUPERIOR COURT OF THE STATE OF CALIFORNIA

13 FOR THE COUNTY OF LOS ANGELES

12 2. Jillian Michaels is a personal trainer, a bestselling author, and a Daytime Emmy-

11 5. Greenberg Traurig and Markman negotiated a contingent fee agreement on behalf of

24 Michaels or Empowered Media regarding these conflicting provisions.

3 their clients and failed to advise plaintiffs regarding them.

7 likelihood of impending disaster.

15 about these conflicting provisions.

7 health and fitness.

11 name and image in connection with products and services.

14 in the City and County Los Angeles, California.

16 in California with an office in Los Angeles, California who resides in California.

19 within the scope of such employment and agency.

26 their actions or omissions.

11 as principals and/or employers.

26 media and entertainment practice at a major law firm.

14 signed an engagement letter or other agreement with Greenberg Traurig or Markman.

19 DEFENDANTS CAUSED MS. MICHAELS TO ENTER INTO CONFLICITING

13 royalty payments to Ms. Michaels.

16 Michaels warranted the following:

17 Licensor represents and warrants as follows: . . . Licensor has entered into no

10 Markman in executing the ThinCare Agreement and making the Warranties.

17 negotiation, drafting, and execution of the other agreement.

10 See BL4 Contract, 7(b) and 7(c).

17 Media for false representation.

18 MS. MICHAELS WAS UNAWARE OF THE CONFLICTS AND FALSE

24 regarding their effect.

16 ThinCare before the parties executed the ThinCare Agreement.

19 THE THINCARE LAWSUIT

8 50. The Lawsuit lasted for over two years.

9 GREENBERG TRAURIG AND MARKMAN CONTINUED TO CONCEAL THE

18 defense in the lawsuit.

16 These words tuned out to be tragically and spectacularly false.

24 provisions or the fact of the false warranties.

26 Greenberg Traurigmade an unsuccessful bid for a preliminary injunction. At the preliminary

2 payments into an escrow account while the Lawsuit was pending.

4 MS. MICHAELS AND EMPOWERED MEDIA FINALLY DISCOVER GREENBERG

8 on its claim for fraudulent inducement (the Motion).11

12 communicating with Greenberg Traurig and Markman to correct defendants mistakes.

21 GREENBERG TRAURIG AND MARKMANS MALPRACTICE AND NEGLIGENCE

7 appearances, the proceeding went as follows:

1 [THINCARES COUNSEL]: Your Honor, I have spoken with my co-counsel and

17 MS. MICHAELS WAS FORCED TO ACCEPT AN UNFAVORABLE SETTLEMENT

5 royalties on these ongoing sales.

8 agreement (the Settlement).

16 a variety of potential business opportunities.

17 GREENBERG TRAURIG AND MARKMAN CONSIDERED THE FALSE WARRANTIES A

5 deposition questioning went further:

1 Q: What about simply technically? Aside from practice, as a technical matter,

16 Q: Well, the exclusivity agreement of [the BL4 Contract] required [ThinCare-

2 Q: . . . Do you know whether anybody from Empowered Media or on behalf of

11 ThinCare should be allowed to see for themselves.

9 GREENBERG TRAURIG AND MARKMAN FAILED TO NEGOTIATE OR DRAFT

23 dollars due and owing them.

16 retailers to date. (http://triumentertainment.com/pages/about-us). Variety Magazine reported that

19 (http://variety.com/2009/scene/news/loser-a-marketing-winner-1117999880). And Brandchannel.com

24 health and weight-loss conscious. (http://www.brandchannel.com/home/post/2009/11/30/Biggest-

25 Loser-Brand-Wins-Despite-NY-Times-Expose.aspx) (emphasis added).

4 contract drafting and negotiation.

12 due to Defendants malpractice.

13 GREENBERG TRAURIG AND MARKMAN FAILED TO PROTECT AND PURSUE MS.