…EXACTLY WHAT WAS THE BOARD OF DIRECTORS THINKING ALL THESE YEARS? APPARENTLY, THERE WAS A LACK OF CRANIAL ACTIVITY...
Salt Lake County, Utah - August 10, 2013
On May 03, 2013, according to court records, Aspiro Group, Inc.
filed a lawsuit (case # 130903097) against former President, CEO,
board member, and co-owner Mr. Charles Randall Oakley.
Aspiro Group, Inc. owns Aspiro Adventure Wilderness,
Vantage Point Wilderness, and their newest venture, Pure Life in Costa Rica.
The plaintiff, Aspiro Group, Inc. asked for relief to recoup over
$1,000,000.00 and treble damages…
WHILE THE BOARD WAS SLEEPING:
Aspiro’s complaint cited scandalous, egregious allegations of misconduct, conspiracy, misappropriation of funds, and mismanagement of company funds (cooked books). The filing appears to read like a sordid tale with endless possibilities including embezzlement, extortion, and blackmail; implications of possible tax fraud/tax evasion regarding several players are quite apparent. Who knew?
The lawsuit maintains that Mr. Oakley used company funds to the tune of $50,000.00 to pay a “Swingers Club.” What would Draper, Utah be without their "Swingers Clubs?" [1] Lace this soap opera with adultery, well, Hollywood could not have wished for a better screenplay –“Divorce Aspiro Style.”
Seriously, Aspiro funds a five-month holiday for the betrayed husband costing Aspiro over $90,000.00 plus bonus (according to the complaint) and the Board does not know? One is reminded of the famous Abbott and Costello comedy sketch, “Who’s on First?” “I don’t know…”
It appears the Board’s cranial activity resumed; the Board
fired Mr. Oakley and the alleged, betrayed husband on
February 1, 2013.
Additionally, when the Board awoke from their five-year slumber party, Aspiro’s complaint states they procured services from a forensic computer expert. The complaint goes on to allege that the computer expert determined that a laptop’s hard-drive was cleansed three hours prior to Mr. Oakley returning the laptop to Aspiro.
Sources reveal that Mr. Brian Church, President, co-owner, and co-founder was less than transparent with educational consultants about Mr. Oakley’s sudden departure from Aspiro. Additionally, sources state Admissions Director Mr. Joshua Watson hinted something was askew or clandestine regarding Mr. Oakley’s departure, but did not elaborate further… Who could blame them?
According to the court filing, the Board’s repeated requests for financial reports and accountability fell on Mr. Oakley’s deaf ears since 2008. In or around 2009, the IRS slapped Aspiro with an invoice for over $100,000.00, since Aspiro had failed to pay any State or Federal employment taxes for at least a year; the IRS was seeking payment of all back taxes, fees and penalties. The complaint states Mr. Oakley never communicated this to the Board.
QUESTION:
Exactly who was minding and mentoring the children in Aspiro’s care? According to the complaint:
•"Oakley was aware that Aspiro’s business is specifically dependent upon its reputation for helping individuals struggling with family relationships and impulse control, among other things."
OUTCOME:
What remains even more shocking, well not really, on July 16, 2013 court documents reveal the lawsuit was dismissed with prejudice, barring Aspiro, the plaintiff, from filing another case on the same claim. Why? To say the criminal allegations leveled against Mr. Oakley were severe is an understatement. At this writing, there does not appear to be criminal charges filed against Mr. Oakley by the D.A., nor does there appear to be a counter lawsuit filed by Mr. Oakley. Again, the question "why" remains unanswered.[2]
By filing this complaint, indeed, Aspiro has exposed its jugular regarding company liability under state and federal laws as stated in Aspiro’s own complaint several times over:
•"Oakley received the funds, but failed to provide the proper services to Aspiro. Rather, he caused Aspiro spend funds for non-business related purposes and exposed Aspiro to liability under state and federal law."
•"Oakley owed a fiduciary duty to act in Aspiro’s best interest and not expose Aspiro to liability under federal or state law."
If the IRS can pull themselves away from their own insanity, here is one apparent case of cooked books and then some.
Aspiro Group, Inc. was not contacted for comment, as Jilliestake did not wish to further embarrass the Board; the Board’s clear lack of governance took care of that. Although, Jilliestake does welcome their take, let us be grateful the Board is not minding our stores.
And, that's our take... what is yours?
Copyright©jilliestake 2013. All rights reserved.
Please view "Complaint" below.
REFERENCE LINKS:
ASPIRO GROUP, INC. – ASPIRO PROGRAMS
http://www.aspiroprograms.com/
[1] DRAPER, UTAH – EYEWITNESS NEWS INVESTIGATION – “SWINGERS”
http://www.ksl.com/?nid=148&sid=254254
[2[DISMISSED WITH PREJUDICE LAW AND LEGAL DEFINITION
http://definitions.uslegal.com/d/dismissed-with-prejudice/
3RD DISTRICT COURT - SALT LAKE
SALT LAKE COUNTY, STATE OF UTAH
ASPIRO GROUP INC vs. CHARLES RANDALL OAKLEY
CASE NUMBER 130903097 Miscellaneous
CURRENT ASSIGNED JUDGE
JUDITH S ATHERTON
PARTIES
Plaintiff - ASPIRO GROUP INC
Represented by: SCOTT M PETERSEN
Defendant - CHARLES RANDALL OAKLEY
ACCOUNT SUMMARY
TOTAL REVENUE Amount Due: 615.75
Amount Paid: 615.75
Credit: 0.00
Balance: 0.00
REVENUE DETAIL - TYPE: COMPLAINT - NO AMT S
Amount Due: 360.00
Amount Paid: 360.00
Amount Credit: 0.00
Balance: 0.00
REVENUE DETAIL - TYPE: JURY DEMAND - CIVIL
Amount Due: 250.00
Amount Paid: 250.00
Amount Credit: 0.00
Balance: 0.00
REVENUE DETAIL - TYPE: COPY FEE
Amount Due: 5.75
Amount Paid: 5.75
Amount Credit: 0.00
Balance: 0.00
PROCEEDINGS
05-03-13 Filed: Complaint
05-03-13 Case filed
05-03-13 Fee Account created Total Due: 360.00
05-03-13 Fee Account created Total Due: 250.00
Page 1
CASE NUMBER 130903097 Miscellaneous
05-03-13 COMPLAINT - NO AMT S Payment Received: 360.00
05-03-13 Judge JUDITH S ATHERTON assigned.
05-03-13 JURY DEMAND - CIVIL Payment Received: 250.00
05-10-13 Filed: Summons - To File (Charles Randall Oakley)
05-10-13 Filed return: Acceptance of Service (Charles Randall Oakley)
upon H. BURT RINGWOOD for
Party Served: CHARLES RANDALL OAKLEY
Service Type: Personal
Service Date: May 08, 2013
06-04-13 Fee Account created Total Due: 5.75
06-04-13 COPY FEE Payment Received: 5.75
07-15-13 Filed: Notice of Dismissal with Prejudice
07-15-13 Filed: Return of Electronic Notification
07-16-13 Case Disposition is Dismsd w prejudice
Disposition Judge is JUDITH S ATHERTON
Page 2
UTAH COURT DOCUMENTS - CASE NUMBER 130903097 -
The entire complaint may be accessed at the below link. There is a charge for access.The document below was digitally uploaded, converted from PDF format to allow for posting, thus loss of format control. Administrative court lists author as
"Mcnett" omitted - Case No: and Judge's name.**
https://courtapps.utcourts.gov/XchangeWEB/login
THE COMPLAINT:
Scott M. Petersen, A7599
Clint R. Hansen, A12108
FABIAN & CLENDENIN,
A Professional Corporation
215 South State Street, Suite 1200
Salt Lake City, Utah 84111-2323
Telephone: (801) 531-8900spetersen@fabianlaw.com
chansen@fabianlaw.comAttorneys for Plaintiff Aspiro Group, Inc.
IN THE THIRD JUDICIAL DISTRICT COURT
SALT LAKE COUNTY, STATE OF UTAH
ASPIRO GROUP, INC., COMPLAINT
Case no. left blank by court adm.**
Plaintiff,
v. Judge: Left blank by court adm.**
CHARLES RANDALL OAKLEY,
Defendant
Now comes Aspiro Group, Inc. (“Aspiro”) and for complaint alleges against Defendant Charles Randall Oakley (“Oakley”) as follows:
PARTIES AND JURISDICTION
1. Aspiro is a Utah Corporation with its principle place of business in Sandy, Utah.
2. Oakley is an individual residing in Salt Lake County, Utah.
3. Jurisdiction is proper pursuant to Utah Code Ann. § 78A-5-102.
4. Venue is proper in this Court pursuant to Utah Code Ann. § 78B-3-307.
FACTUAL BACKGROUND
5. Aspiro is a company that provides adolescent and young adult therapeutic wilderness programs. Programs are designed to help troubled teenagers
between the ages of 13 and 18 as well as young adults between the ages of 18 and 28.
6. Aspiro’s programs help teens and young adults suffering from problems relating to, among other conditions, ADHD, anger management, depression,
family relationships, impulse control, and substance abuse.
7. Aspiro’s business is dependent upon maintaining the highest level of professional and personal integrity and the cleanest values, such as those it seeks
to inspire in the lives of its participants.
8. In or around 2008, Aspiro hired Oakley as its President and Chief Executive Officer. As president and CEO, Aspiro entrusted in Oakley the
management and control of Aspiro, its business, affairs and property.
9. As President and CEO Oakley oversaw Aspiro’s hiring, training, and compensation of its employees. He oversaw Aspiro’s bank accounts and
property, both real and personal.
10. Oakley was in large respect the face of Aspiro to its clients and vendors, and he maintained control over its operations and the use of its funds. Aspiro
placed its trust and confidence in Oakley, allowed him access to all of its financial information, and relied on him to oversee and create an accurate financial record.
11. In return, Oakley was paid a salary by Aspiro, bonuses as approved by Aspiro’s board of directors, and reimbursement for reasonable company-
related expenses.
12. At all times relevant, Aspiro’s board of directors was comprised of four directors, Oakley, Brian Church, Chris McRoberts, and Andy Bayola (the
“Board”).
13. Throughout Oakley’s time as President and CEO of Aspiro, various Board members requested updates from Oakley regarding Aspiro’s business
direction, financial status, and accounting.
14. Oakley either refused to provide the Board with the requested information, or the information he did provide was incomplete or misleading. Often,
Oakley would accuse the Board of not trusting him and of attempting to interfere with his management and operation of the business.
OAKLEY’S MISAPPROPRIATION & MISMANAGEMENT OF COMPANY FUNDS
15. Unbeknownst to the Board, almost from the outset, Oakley engaged in conduct which was financially damaging to Aspiro’s business, was damaging to
Aspiro’s reputation, and was directly contrary to the integrity and values that Aspiro stands for.
16. Among other things, Oakley used company funds for his own personal benefit and not for the benefit of Aspiro.
17. For example, Oakley regularly used Aspiro’s credit card to pay for lunches, dinners, clothes, car expenses and other purchases for himself and his
friends. From 2010-2012, Oakley submitted over $185,000 in expenses that he instructed Aspiro employees to reimburse him. In addition, however, during this
same time period, Oakley spent over $350,000 of Aspiro’s funds for himself and others, much of which was not company related or related to company business.
18. The company credit card was only a fraction of the expenses that Oakley caused Aspiro to pay for him or his family and friends. In addition to these
expenses, Oakley caused Aspiro to pay for many other non-business related items, including but not limited to:
a. A payment of $150,000 for the purchase of a home in the gated Pepperwood neighborhood located in Sandy, Utah in the name of Oakley’s
parents,
b. $54,000 in payments to Oakley’s parents for a home in Riverton, Utah,
c. A $12,000 loan to Oakley’s neighbor,
d. A $50,000 payment to a swingers club with a location in Draper, Utah,
e. $11,547.02 in payments for remodeling a home in Riverton, Utah,
f. Payments totaling at least $28,017.37 for personal trips Oakley took with friends to New York, Napa Valley, Hawaii, and Los Cabos,
g. $346,910.00 in payments to entities in which Oakley had a direct or indirect interest or benefit and for which Aspiro received no appreciable value in
return, whether for product or services,
h. $30,000 in payments to Marney Sullivan for consulting services that Aspiro never actually received , provided little benefit, or were otherwise not
business related services,
i. Payments of salary and other expenses to Oakley’s then-wife, Christina Oakley, who had already terminated her employment with Aspiro, and
j. Other non-business related services, including but not limited to yard care and landscaping services for his homes, equipment for out-door activities,
artwork, furniture, house décor, an automobile for Oakley’s son, loans and assistance to employees and friends, etc.
19. Aspiro believes that the vast majority of the above expenses Oakley caused Aspiro to make for his benefit or for the benefit of others, were unrelated
to any actual Aspiro business purpose and that Aspiro received little or nothing of value in return for the payments.
20. At no time did Oakley report these expenses to the Board. And when individual Board members demanded an accounting of the expenses the
company was paying, Oakley simply refused to provide the financial information.
21. Oakley further caused Aspiro to enter into agreements and engage in transactions which were not approved by the Board and which harmed Aspiro.
These included, among others: promising a newly hired therapist 3% “phantom stock” in Aspiro without board approval.
OAKLEY CONCEALS HIS MISCONDUCT
22. Throughout his tenure as Aspiro’s President and Chief Executive Officer, Oakley took active steps to conceal his misconduct from the Board.
23. Oakley himself kept or oversaw the keeping of Aspiro’s accounting records, and generally failed to include any description of the transactions
recorded or any supporting documentation. For example:
a. the $150,000 payment for Oakley’s Pepperwood home was documented simply as “Company Development,” with no description of the
transaction;
b. the $12,000 loan to Oakley’s neighbor was documented simply as “Remodel;” and
c. a credit card charge of $7,000 for Oakley’s trip with friends to an adult- themed resort in Los Cabos was recorded on the expense account titled
“Lodging” with “Los Cabos” as the only description.
24. Oakley maintained various Aspiro bank accounts, but refused to allow anyone but himself to have access to those accounts.
25. The Board and other officers were not aware of many of the bank accounts that Oakley established, and Aspiro believes at least some of them listed
Oakley as the sole authorized officer and signatory for some or all of the relevant time period.
26. Oakley also caused Aspiro’s corporate offices to be maintained in his own private residence.
27. He controlled who entered and exited the office and did not allow the Board access to much of Aspiro’s company records and information.
28. In or around 2009, Oakley was notified by the IRS that Aspiro had failed to pay any State or Federal employment taxes for at least a year, and that
the IRS was seeking payment of all back taxes, fees and penalties.
29. Although the amount in issue exceeded $100,000, Oakley never communicated this information to the Board.
30. In 2008, Oakley provided financial statements which showed a small profit in the company.
31. In fact, the company was severely in debt at the time due to the non-payment of
taxes.
32. At one point, Board member Chris McRoberts raised at a Board meeting the need for an audit of Aspiro’s books.
33. Oakley angrily told McRoberts that if the issue of an audit was pressed, he would discontinue all future Board meetings.
34. In or around November of 2009 or the beginning of 2010, McRoberts attempted to access Aspiro’s QuickBooks accounting files. After successfully
logging on one or two times, McRoberts’ access was blocked.
35. In or around the second quarter of 2012, the other Board members requested financial information from Oakley, but Oakley intentionally lied and
informed them that new accounting software was coming on line and that no financial data was available while the transition was happening, when he knew that in
fact the information was readily available in the old QuickBooks software.
36. In or around the third quarter of 2012, Oakley informed the Board that the Aspiro had no funds for distribution, which in fact the company did have
funds and Oakley made a distribution to himself.
OAKLEY HIRES KEITH PEARSON
37. In or around February 2012, Oakley hired Keith Pearson as Aspiro’s Chief Operations Officer and Chief Financial Officer. Oakley’s decision to hire
Pearson and make him an officer of Aspiro was not approved by the Board. In fact, until Pearson’s termination from Aspiro on February 1, 2013, the Board was
unaware of Keith’s status as an officer.
38. At the time Oakley hired Pearson, he caused Aspiro to enter into a written employment agreement with Pearson. Oakley did not negotiate any
meaningful terms favorable to Aspiro, but rather allowed Pearson to add terms very favorable to Pearson, including an unreasonably high severance and benefits
package and termination terms that purport to bind Aspiro to paying Pearson approximately $168,240 in the event of a termination.
39. Oakley did not seek Board authority to cause Aspiro to enter into this transaction. In fact, he did not even tell the Board that the agreement existed.
Moreover, Oakley sought no legal or other professional advice before executing the agreement on Aspiro’s behalf.
40. In addition to the employment agreement Oakley executed with Pearson, Oakley engaged in other inappropriate acts on behalf of Aspiro for
Pearson’s benefit. These acts include but are not limited to:
a. Oakley conspired with Pearson to report to lending institutions incorrect salary and compensation information for Pearson in an effort to increase the amount
of home loan for which Pearson would qualify for his home,
b. Oakley caused Aspiro to purchase a Chevy Volt that Pearson owned in order to decrease the amount of debt to income ratio for Pearson,
c. Oakley caused Aspiro to pay for yard care for Pearson’s home,
d. Oakley caused Aspiro to pay for carpet cleaning for Pearson’s home,
e. Oakley causes Aspiro to pay at least $4,500 as a down payment on a 2013 Cadillac for Pearson’s use, and
f. Oakley caused Aspiro to invest $72,700.00 in a company called Kuna, Inc., a Nevada corporation (dba Kiva Squared) in which Oakley and Pearson were
the owners and officers and for which Aspiro received nothing of value in return.
41. Oakley performed all of these acts without Board knowledge or approval.
42. In fact, Oakley made conscious efforts to keep his behavior from the Board by, among other things, refusing to report to the Board what he was doing
with Aspiro funds, causing Aspiro to mask the true purpose of Aspiro expenses by making false and incorrect entries into its books and financial records.
43. For example, Oakley documented the payoff the Chevy Volt without any payee or any description of the transaction and recorded it in the
Quickbooks expense account titled “Development and Research.”
44. Oakley performed these acts to benefit himself and his friends and to the detriment of Aspiro.
OAKLEY HIRES KEITH’S WIFE LAURA PEARSON
45. In addition to Keith Pearson, Oakley hired Keith’s wife Laura Pearson as an executive assistant to Oakley. Aspiro had other assistants with similar
positions, but Oakley intentionally provided Laura with more pay and benefits than he did the other assistants.
46. Moreover, at some point, he became sexually involved with Laura despite Laura reporting to Oakley as her boss and despite the fact that she was
married to Aspiro’s CFO, Keith Pearson.
47. Oakley’s relationship with an Aspiro subordinate exposed Aspiro to liability under state and federal discrimination and harassment laws.
Nevertheless, Oakley did not immediately disclose his relationship with Laura to the Board, but continued to keep Laura as his executive assistant. He further
continued to provide her benefits other assistants did not receive and he paid for those benefits with Aspiro funds.
48. Among the benefits Oakley provided Laura were dinners, lunches, personal items, and trips with Oakley, all paid for by Aspiro.
OAKLEY SENDS KEITH PEARSON TO NEPAL FOR 5 MONTHS
49. At some point during Oakley’s relationship with Laura Pearson, Laura’s husband Keith became aware of the relationship. Thereafter, Oakley caused
Aspiro to pay additional non- business related expenses to Laura and Keith with Aspiro funds.
50. On information and belief, Oakley caused Aspiro to pay these non-business related expenses in order to placate Keith Pearson because of Oakley’s
relationship with Keith’s wife Laura.
51. In the Summer/Fall of 2012, Oakley caused Aspiro to pay for Keith to take a personal trip to Nepal lasting five months. The purpose of Keith’s trip
was not related to Aspiro, its business purpose or Keith’s role as CFO or COO. Rather, Keith used the trip as a personal
journey to seek emotional and mental stability for himself and to make decisions relating to his relationship with his wife Laura Pearson.
52. In fact, at one point, Keith wrote an e-mail to Oakley indicating that he was not sure he would return to Aspiro when he was done with his trip.
53. Notwithstanding, Oakley caused Aspiro not only to pay for Keith’s expenses, but to continue paying his salary and benefits, despite the fact that Keith
was not in the United States and was not performing any work for Aspiro.
54. After Keith went to Nepal, his wife Laura Pearson moved in with Oakley in his Pepperwood home.
55. Oakley caused Aspiro to pay at least $90,756.63 for Keith’s trip expenses, salary, and benefits during Keith’s five-month trip to Nepal. In fact, at
one point, Oakley intentionally caused Aspiro to pay Keith a $12,000 bonus while he was in Nepal, despite the fact that Keith was providing no CFO or COO
services to Aspiro.
OAKLEY’S TERMINATION
56. On February 1, 2013, Aspiro’s Board removed Oakley and Keith as officers and terminated them from the company.
57. At the same time, Aspiro demanded that Oakley return to Aspiro the company information, documents, electronic files, and property he possessed
and controlled in the office he had in his Pepperwood home. Aspiro knew that much of this information was located on at least two computers in Oakley’s
possession. Despite multiple requests, Oakley refused to return the property or the computers.
58. Thereafter, on February 5, 2013, Oakley returned one of the laptop computers. Aspiro had the laptop reviewed and analyzed by a retained computer
and digital forensics expert. The expert reported that three hours prior to returning the computer, Oakley permanently deleted (using a multiple-layer wipe) the
information from the computer’s hard drive. The expert explained that due to the manner in which the hard drive was wiped, retrieving anything from the hard drive
would be, if not impossible, extremely difficult and expensive.
59. Thereafter, on February 26, 2013, Aspiro sent Oakley (through counsel) a letter demanding additional specific pieces of property and information in
Oakley’s possession and control. Oakley has failed or refused to return any of the requested information or respond to Aspiro’s demand.
60. After terminating Oakley, the Board was finally able to access the company’s financial records that Oakley had kept so closely hidden.
61. Thereafter, through counsel, Aspiro engaged a forensic accountant and learned for the first time of Oakley’s significant misconduct, as detailed above.
FIRST CLAIM FOR RELIEF
(Breach of Contract)
62. Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
63. Aspiro hired Oakley as its President and CEO. It paid him salary and draws in exchange for his services as President and CEO. This arrangement
constitutes a valid, enforceable contract.
64. Aspiro fully performed its obligations with respect to Oakley by paying him his salary, draws, and other benefits.
65. Oakley breached his obligations to perform the duties of President and CEO as alleged above by using Aspiro funds for inappropriate purposes
benefitting himself, his family and friends, and not for legitimate business purposes, by exposing Aspiro to legal liability due to his inappropriate behavior with other
employees, and by failing and refusing to return to Aspiro company property and information in his possession or control.
66. Oakley’s breach of his obligations has caused Aspiro to suffer damages to be determined at trial, but exceeding $1,000,000.
67. Oakley’s breach has further exposed Aspiro to potential liability under state and federal discrimination laws, and tax laws, including penalties, interest,
costs, and attorney fees, all in an amount to be proven hereafter.
SECOND CLAIM FOR RELIEF
(Unjust Enrichment)
1. Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
2. Aspiro conferred a benefit on Oakley inasmuch as it paid him salary and benefits for his services as President and CEO of Aspiro.
3. Oakley received the funds, but failed to provide the proper servicesto Aspiro. Rather, he caused Aspiro spend funds for non-business related
purposes and exposed Aspiro to liability under state and federal law.
4. Under the circumstances, it would be unjust for Oakley to retain the salary and benefits he received without returning to Aspiro the value of the
services for which he was compensated.
5. Due to Oakley’s unjust enrichment, Aspiro has suffered damages to be determined at trial, plus accruing interest, costs, and attorney fees.
6. Aspiro is also entitled to a constructive trust in the salary and other benefits unjustly retained by Oakley and in all of the non-business related property
which Oakley caused to be purchased with Aspiro funds.
THIRD CLAIM FOR RELIEF
(Breach of Implied Covenant of Good Faith and Fair Dealing)
7. Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
8. As acting president and CEO of Aspiro and in his employment capacity with Aspiro, Oakley owed an implied duty of good faith and fair dealing to
Aspiro.
9. This duty required among others, that Oakley affirmatively and truthfully represent all material facts, deal fairly with Aspiro and its shareholders, and
conduct his duties to the Company and its shareholders in the utmost good faith.
10. Oakley breached his fiduciary duties to Aspiro and its shareholders, and continues to breach his fiduciary duties to Aspiro and its shareholders by,
among other things:
a. failing to return to Aspiro its property and information;
b. failing to be truthful in his reports to Aspiro’s Board and in documenting the purpose for Aspiro’s payment of expenses for Oakley’s benefit and the benefit
of his friends and family; and
c. engaging in conduct, and causing Aspiro to engage in conduct, which damaged Aspiro’s business reputation and was contrary to the company’s core values.
11. Oakley has done this with the explicit purpose of benefitting himself and to damage Aspiro.
12. Such breaches by Oakley proximately caused damage or injury to Aspiro in an amount to be proven at trial, together with applicable interest, costs
and attorney fees.
FOURTH CLAIM FOR RELIEF
(Breach of Fiduciary Duty)
13. Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
14. Aspiro entrusted Oakley with complete control over all if is employees and management, including its bookkeeping and financial records.
15. Aspiro entrusted Oakley to act as its agent in using its funds and interacting with its employees.
16. Pursuant to, among other facts, the trust that was placed in Oakley as its President and CEO, Oakley owed a fiduciary duty to Aspiro not to engage in
acts or do anything that would cause Aspiro harm. Oakley owed a fiduciary duty to act in Aspiro’s best interest and not expose Aspiro to liability under federal or
state law.
17. Oakley owed a duty to disclose material financial and liability information to Aspiro’s Board, to maintain accurate and complete records of Aspiro’s
finances, to make only authorized payments, and to implement reasonable, necessary and adequate control functions.
18. Oakley breached his fiduciary duty to Aspiro by, among other things:
a. Causing Aspiro to make unauthorized payments and purchases for non-business purposes and for the benefit of Oakley, his friends and family;
b. Failing to properly record payments in Aspiro’s financial records;
c. Entering into contracts with employees without approval, legal counsel, and to the detriment of Aspiro;
d. Failing to disclose to the Board the unauthorized expenditures by Aspiro;
e. Materially misrepresenting Aspiro’s liabilities in reports to the Board;
f. Knowingly keeping inaccurate and incomplete accounting records;
g. Failing to return to Aspiro its property and information as requested;
h. Engaging in conduct, and causing Aspiro to engage in conduct, which damaged Aspiro’s business reputation and was contrary to the company’s core values;
and
i. Such other and further breaches as may be proven hereafter.
19. As a direct and proximate result of the above breaches, Aspiro has suffered and continues to suffer damages in an amount to be proven hereafter.
20. Furthermore, Oakley’s breaches were willful and/or in reckless disregard of Aspiro’s rights and interests. As a result, Aspiro is entitled to punitive
damages in an amount to be proven at trial.
21. Aspiro is also entitled to a complete and accurate accounting of Oakley’s use of Aspiro funds.
FIFTH CLAIM FOR RELIEF
(Breach of Duty of Loyalty)
22. Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
23. While in the capacity of Aspiro’s President and CEO, Oakley owed Aspiro a duty of loyalty which required, among other things, that he use his
ingenuity, influence, and energy, to preserve and enhance the property and earning power of the corporation, even if the interests of the corporation are in conflict
with his own personal interests.
24. The duty of loyalty also required Oakley refrain from activity that would harm or injure Apiro, including among other things, that he refrain from
misappropriating Aspiro assets and income.
25. Oakley breached his duty of loyalty to Aspiro by engaging in, among other things, the following:
a. Causing Aspiro to make unauthorized payments and purchases for non-business purposes and for the benefit of Oakley, his friends and family;
b. Failing to properly record payments in Aspiro’s financial records;
c. Entering into contracts with employees without approval, legal counsel, and to the detriment of Aspiro;
d. Failing to disclose to the Board the unauthorized expenditures by Aspiro;
e. Materially misrepresenting Aspiro’s liabilities in reports to the Board;
f. Knowingly keeping inaccurate and incomplete accounting records;
g. Failing to return to Aspiro its property and information as requested.
h. Engaging in conduct, and causing Aspiro to engage in conduct, which damaged Aspiro’s business reputation and was contrary to the company’s core
values; and
i. Such other and further breaches as may be proven hereafter.
26. As a direct and proximate cause of Oakley’s breaches, Aspiro has been damaged in an amount to be proven at trial.
27. Furthermore, Oakley’s breach was willful and/or in reckless disregard of Apiro’s rights and interests. As a result, Aspiro is entitled to punitive
damages in an amount to be proven at trial.
SIXTH CLAIM FOR RELIEF
(Conversion)
28. Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
29. As alleged in detail above, Oakley has intentionally converted to his own use and gain money and assets of Aspiro, inconsistent with Aspiro’s rights of
use and possession.
30. Such conversion was done without Aspiro’s authorization or lawful justification.
31. As a direct result of Oakley’s conversion, Aspiro is entitled to recover the full value of the converted money and assets, in an amount to be determined
at trial.
32. Furthermore, Oakley’s conversion was willful and/or in reckless disregard of Aspiro’s rights and interests. As a result, Aspiro is entitled to punitive
damages against Oakley in an amount to be proven at trial.
33. In addition, as Oakley continues to possess or control Aspiro property and information, the Court should issue an injunction requiring Oakley (1) to
preserve Aspiro property and information and (2) to return its property and information to Aspiro immediately.
SEVENTH CLAIM FOR RELIEF
(Fraud and/or Negligent Misrepresentation)
34. Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
35. Oakley made representations of material fact to Aspiro and its Board in connection with the misappropriation of Aspiro money and assets. These
representations include, but are not limited to, his false, misleading and/or incorrect entries into its Aspiro’s books and financial records, and those other facts set
forth above.
36. Oakley’s representations as described above were untrue when they were made, were known by Oakley to be untrue when they were made, were
made with reckless disregard for their truth or falsity, or were made without reasonable grounds or basis for Oakley to believe them to be true.
37. Oakley’s representations were made for the purpose of covering up his misappropriation of money and assets and the exposure of liability to Aspiro
that Oakley caused through his inappropriate and illegal acts.
38. Aspiro and its Board, acting reasonably, and in ignorance of the falsity of Oakley’s representations, relied on the representations in, among other
things: continuing to pay Oakley his salary and benefits and continuing to entrust in him the management of Aspiro, its employees, income, assets and finances.
39. Aspiro has suffered, and continues to suffer damages as a proximate result of Oakley’s negligent or fraudulent misrepresentations of material fact.
40. Furthermore, Oakley’s misrepresentations were made in willful and/or in reckless disregard of the truth or of Aspiro’s rights and interests. As a result,
Aspiro is entitled to punitive damages in an amount to be proven at trial.
EIGHTH CLAIM FOR RELIEF
(Fraudulent Concealment)
41. Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
42. While in the capacity of Aspiro’s President and CEO, Oakley had a duty to disclose to the Board material facts regarding Aspiro’s business, including
among other things, material facts relating to Aspiro’s finances, the use of Aspiro’s funds, the hiring of new officers, and Aspiro’s entry into significant contracts.
43. Oakley also owed a duty to disclose to the Board his knowledge of any activity that could harm or injure Aspiro, including among other things, any
misappropriation of Aspiro assets and any activity that could expose Aspiro to liability under state and federal discrimination and harassment laws.
44. Oakley had a duty to disclose the true nature of the financial transactions Aspiro was engaging in.
45. Oakley had a duty to disclose any significant financial concerns, including the IRS’s demand for unpaid employment taxes.
46. Oakley had knowledge of the facts set forth above, but intentionally failed to disclose them to the Board.
47. Aspiro has suffered, and continues to suffer damages as a proximate result of Oakley’s failure to disclose these material facts.
48. Furthermore, Oakley took active steps, as described above, to conceal these material facts from Aspiro and its Board, going so far as to wipe the
hard drive of his computer clean before turning it over to the Board. As a result, Aspiro is entitled to punitive damages in an amount to be proven at trial.
NINTH CLAIM FOR RELIEF
(Intentional and/or Negligent Interference With Prospective Business)
49. Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
50. Oakley was aware that Aspiro’s business is dependent upon its reputation for integrity and honest values.
51. Oakley was aware that Aspiro’s business is specifically dependent upon its reputation for helping individuals struggling with family relationships and
impulse control, among other things.
52. Oakley’s conduct, as set forth herein, has damaged Aspiro’s business reputation and interfered with its ability to solicit new clients.
53. Aspiro has suffered, and continues to suffer damages as a proximate result of Oakley’s conduct described herein.
WHEREFORE, Aspiro demands the following relief;
A. For an award of actual and consequential damages to be determined at trial, but exceeding $1,000,000.00 plus prejudgment interest;
B. For an award of treble damages pursuant to Utah Code Ann. § 76-6-412(2) based on Oakley’s conversion of Aspiro property and assests;
C. For an award of punitive damages based on Oakley’s willful and wanton behavior to Aspiro;
D. For an order requiring Oakley to return to Aspiro its property and information in Oakley’s possession and control;
E. For an order establishing constructive trust in the non-business related property that Oakley caused to be purchased with Aspiro’s money;
F. For an order enjoining Oakley from destroying or deleting Aspiro information or misappropriating Aspiro trade secrets;
G. For an order requiring Oakley to provide an accounting of his use of Aspiro funds;
H. For an award of attorney fees and costs associated with bringing this action as may be provided for by law; and
I. For an award of such other and further relief as the Court deems just and equitable.
JURY TRIAL DEMAND
Pursuant to the Utah Rules of Civil Procedure, plaintiff demands trial by jury.
DATED this 3rd day of May 2013.
/s/ Scott M. Petersen_______________
Scott M. Petersen
Clint R. Hansen
FABIAN & CLENDENIN,
A Professional Corporation
Attorneys for Aspiro Group, Inc.
4816-5413-5827, v. 1
https://courtapps.utcourts.gov/XchangeWEB/login