FILED: NEW YORK COUNTY CLERK 10/12/2016 01:31 PM INDEX NO. 655422/2016 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/12/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Project Orbis International, Inc., Plaintiff, v. Orbis Taiwan a/k/a Taiwan Prevent Blindness, Defendant. Index No. Date Purchased: SUMMONS Venue is based on the Plaintiff s residence pursuant to C.P.L.R. 503 TO: THE ABOVE-NAMED DEFENDANT: YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve a copy of your Answer or, if the Complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff s attorneys within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. Dated: New York, New York October 12, 2016 CLIFFORD CHANCE US LLP By: /s/ Jeff E. Butler Jeff E. Butler Mary Jane Yoon TO: Orbis Taiwan a/k/a Taiwan Prevent Blindness 3F, No. 118 Tun Hua North Rd. Taipei 10547, Taiwan 31 West 52nd Street New York, New York 10019 Tel.: (212) 878-8000 Fax: (212) 878-8375 jeff.butler@cliffordchance.com maryjane.yoon@cliffordchance.com 1 of 8
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Project Orbis International, Inc., against Plaintiff, Index No.: COMPLAINT Orbis Taiwan a/k/a Taiwan Prevent Blindness, Defendant. Plaintiff Project Orbis International, Inc. ( Orbis International ), for its complaint against defendant Orbis Taiwan a/k/a Taiwan Prevent Blindness ( Orbis Taiwan ), alleges through its undersigned counsel as follows: Nature of the Action 1. Orbis International is a New York not-for-profit corporation dedicated to the treatment and elimination of preventable blindness throughout the world. This action seeks the payment of charitable donations made in Taiwan for the benefit of Orbis International. In 2003, Orbis International entered an Affiliation Agreement with Orbis Taiwan so that Orbis Taiwan could raise funds for Orbis International in Taiwan. In August 2016, Orbis International terminated the Affiliation Agreement based on the admitted criminal conduct of Orbis Taiwan s Chairman, Dr. Ray Jui-Fang Tsai. Pursuant to the terms of the Affiliation Agreement, Orbis Taiwan was required to turn over all charitable contributions raised for Orbis International. Orbis Taiwan has failed to comply with this contractual obligation and, indeed, has threatened to transfer these funds to other organizations in Taiwan. Parties and Jurisdiction 2. Orbis International is a not-for-profit corporate organized under the laws of the 2 of 8
State of New York with its headquarters at 520 Eighth Avenue, 12th Floor, New York, New York 10018. 3. Defendant Orbis Taiwan is a not-for-profit organization established under the laws of Taiwan, Republic of China. Its head office is located at 3F, No. 118 Tun Hua North Road, Taipei 10547, Taiwan, R.O.C. 4. This Court has personal jurisdiction over the parties pursuant to the Affiliation Agreement between Orbis Taiwan and Project Orbis International, Inc. dated April 8, 2003 (the Affiliation Agreement ). Pursuant to Section 13.11 of the Affiliation Agreement, the parties agreed to submit to the exclusive jurisdiction over all disputes hereunder and venue in the federal and state courts in the State of New York located in New York County. Orbis Taiwan is also subject to personal jurisdiction pursuant to C.P.L.R. 302 with respect to the claims in this Complaint because it transacted business in this state. 5. This case may be properly assigned to the Commercial Division of the Supreme Court pursuant to 202.70 of the Uniform Rules for the New York State Trial Courts. Exclusive of punitive damages, interests, costs, disbursements and counsel fees, the amount at issue meets or exceeds the monetary threshold of $500,000. The principal claims involve a breach of contract. 6. Venue is appropriate in this Court pursuant to C.P.L.R. 503(a) and Section 13.11 of the Affiliation Agreement. Relevant Facts 7. Orbis International is a not-for-profit humanitarian organization dedicated to the prevention and treatment of blindness in the developing world. Through its various programs, Orbis International provides medical treatment/surgeries, hands-on medical training, public 2 3 of 8
health education and improved access to quality eye care. Orbis International has delivered its programs and services to 92 countries worldwide. In some countries, Orbis International operates through affiliations with local companies. The Affiliation Agreement 8. On April 8, 2003, Orbis International entered into the Affiliation Agreement with Orbis Taiwan. The Affiliation Agreement allows Orbis Taiwan to use Orbis International trademarks to solicit charitable donations for Orbis International in Taiwan. 9. Under the Affiliation Agreement, Orbis Taiwan was required annually to state the total sum that Orbis Taiwan planned to raise in support of Orbis International programs for the following fiscal year. This amount is called the Annual International Funding Commitment. 10. Section 10.2.1 of the Affiliation Agreement provides that the contract may be terminated immediately and without prejudice to any accrued rights... [i]f in the reasonable opinion of the Board of the party seeking to terminate the Agreement the other party engages in or is accused of engaging in scandalous conduct or does anything which will bring the reputation of the terminating party into disrepute. 11. Section 10.3 of the Affiliation Agreement provides that, upon termination, Orbis Taiwan is obliged to pay to Orbis International all funds raised by the Affiliate up to the date of termination and which are applicable to the Affiliate s Annual International Funding Commitment for that fiscal year, together with any additional funds specifically raised... for Orbis International programs using any Orbis International Mark or Marks as defined in Section 2 herein. 12. Under Section 11 of the Affiliation Agreement, Orbis Taiwan agreed to indemnify Orbis International for all losses, costs, interest and expenses, including reasonable attorneys 3 4 of 8
fees and disbursements, resulting from any material breach by Orbis Taiwan of any provision of the Affiliation Agreement. Admission of Wrongdoing by Dr. Tsai 13. Dr. Ray Jui-Fang Tsai ( Dr. Tsai ) is the Chairman of the Board and Executive Director of Orbis Taiwan. Dr. Tsai is a prominent physician and medical professor in Taiwan. He operates an eye-care clinic in Taipei, Taiwan called the Taipei Eye Center. 14. In November 2015, Dr. Tsai admitted to dispensing diluted eye drops at the Taipei Eye Center in violation of Taiwan s Pharmaceutical Affairs Act. The dilution of eye drops is a severe breach of medical ethics and standard of care that potentially endangered patients under his care. Although Dr. Tsai has entered a deferred prosecution agreement with the Taiwanese criminal authorities, his unethical conduct has been well-publicized in Taiwan and has tarnished not only his reputation, but also that of Orbis International. Termination by Orbis International 15. In the wake of Dr. Tsai s admission of criminal wrongdoing in Taiwan, Orbis International requested that Dr. Tsai resign as Chairman of the Orbis Taiwan Board. Dr. Tsai did not resign. Instead, in June 2016, the Orbis Taiwan Board reappointed him Chairman of the Board for a third three-year term. The Orbis Taiwan Board also terminated the then-executive Director and appointed Dr. Tsai the new Executive Director of Orbis Taiwan. 16. On August 8, 2016, Orbis International terminated the Affiliation Agreement with Orbis Taiwan pursuant to Section 10.2.1. On that date, in the presence of his Taiwanese counsel, Orbis International s CEO gave a letter to Dr. Tsai, as Chairman and Executive Director of Orbis Taiwan, notifying him of the termination. Dr. Tsai signed the notice letter and accepted the termination. 4 5 of 8
17. Orbis Taiwan s Annual International Funding Commitment for 2016 is $1 million. Prior to termination, Orbis Taiwan remitted $56,000 of this amount to Orbis International. The current balance of the Annual International Funding Commitment is $944,000. 18. Since the date of termination of the Affiliation Agreement, Orbis Taiwan has refused to remit to Orbis International any of the charitable contributions solicited and raised by Orbis Taiwan prior to termination. Moreover, Orbis International has not been granted access to the books and records of Orbis Taiwan that would establish the amount of charitable funds raised on behalf of Orbis International. Orbis Taiwan and Dr. Tsai have indicated that they intend to return the funds raised on behalf of Orbis International to donors in Taiwan or to distribute such funds to other organizations. 19. On information and belief, Orbis Taiwan raised at least $560,000 on behalf of Orbis International prior to termination of the Affiliation Agreement. First Claim for Relief (Breach of Contract) 20. Plaintiff repeats and incorporates the allegations in paragraphs 1 through 19 as if set forth fully herein. Agreement. 21. Orbis International and Orbis Taiwan are parties to the Affiliation Agreement. 22. Orbis International has performed all of its obligations under the Affiliation 23. On August 8, 2016, Orbis International terminated the Affiliation Agreement pursuant to Section 10.2.1. 24. Pursuant to Section 10.3 of the Affiliation Agreement, Orbis Taiwan is obliged to pay Orbis International all funds raised by Orbis Taiwan up to the date of termination, which 5 6 of 8
Orbis International believes to be at least $560,000. 25. Orbis Taiwan has failed to comply with Orbis International s requests to remit this amount, and has threatened to distribute funds raised for Orbis International to other organizations in Taiwan. This is a material breach of the Affiliation Agreement by Orbis Taiwan. 26. As a direct and proximate result of this breach, Orbis International has suffered damages in an amount not less than $560,000. Second Claim for Relief (Contractual Indemnification) 27. Plaintiff repeats and incorporates the allegations in paragraphs 1 through 26 as if set forth fully herein. 28. Orbis Taiwan is in material breach of the Affiliation Agreement. 29. Pursuant to Section 11 of the Affiliation Agreement, Orbis Taiwan is obligated to indemnify Orbis International for all losses, costs, interest and expenses, including reasonable attorneys fees and disbursements, resulting from this breach. 30. Accordingly, Orbis Taiwan is contractually obligated to indemnify Orbis International for at least $560,000, together with reasonable attorneys fees and disbursements in an amount to be determined at trial. Request for Relief WHEREFORE, plaintiff Orbis International prays for the following relief: a) A temporary restraining order and preliminary injunction prohibiting Orbis Taiwan from transferring or otherwise disposing of funds raised by Orbis Taiwan for the benefit of Orbis International; b) A permanent injunction prohibiting Orbis Taiwan from transferring or otherwise 6 7 of 8
disposing of funds raised by Orbis Taiwan for the benefit of Orbis International except as ordered by the Court; c) Final judgment awarding Orbis International damages in the amount of at least $560,000; d) Final judgment awarding Orbis International indemnification for costs, interest and expenses, including reasonable attorneys fees and disbursements pursuant to Section 11 of the Affiliation Agreement; e) Final judgment awarding pre- and post-judgment interest at the maximum lawful rate; and f) Granting Orbis International such other and further relief as the Court may deem just and proper. Dated: October 12, 2016 CLIFFORD CHANCE US LLP By: S/Jeff E. Butler Jeff E. Butler Mary Jane Yoon 31 West 52nd Street New York, NY 10019 Tel. (212) 878-8000 Fax (212) 878-8375 jeff.butler@cliffordchance.com maryjane.yoon@cliffordchance.com Attorneys for Project Orbis International, Inc. 7 8 of 8