Plaintiff,
- against -
Bruce Fancher, Evolution Online Systems, Inc.
and Phantom Access Technologies, Inc.
Defendants.
Index No.:
AFFIDAVIT
STATE OF NEW YORK )
COUNTY OF NEW YORK) SS.:
CITY OF NEW YORK )
Ken Kappel being duly sworn, deposes and says:
1. I, Ken Kappel, 53 years old, the undersigned, residing at 127 West 26th Street, New York, New York, 10001, am personally aware of the facts and statements offered herein on their relevancy to this matter of a partially paid finder's fee, and am offering this executed and Notarized Affidavit under penalty of perjury in order to assist this Court to expeditiously determine the facts of the matter.
2. Since approximately April of 1994 your deponent has been acquainted with Bruce Fancher, 24 years old, who was and remains President and founder of an Internet service provider, Phantom Access Technologies, Inc., ("Phantom"), located at 1133 Broadway, New York, New York, 10011. Mr. Fancher is also a principal partner in Evolution Online Systems, Inc. ("Evolution"). Upon information and belief, both companies are registered in the State of Delaware and housed in the same office,, and they share common services such as payroll services, utilities, general office expenses, computers and personnel.
3. On or about December 21, 1994, Fancher, as partner in Evolution described in detail to your deponent the specifications (skill set) that he required in a computer programmer that Evolution had been unable to locate in order to complete particularly difficult elements of Evolution's approximately $500,000 contract with the Dutch Telephone Company's subsidiary, Planet Internet ("Planet"), located in Amsterdam.
4. Your deponent immediately called Mark Edwards, a business associate (who had become a personal friend) who had previously been hired by your deponent on a programming job. In addition to matriculating at New York University as a Computer Science major, Mr. Edwards has an excellent reputation as a programmer and has done work for institutions such as Lehman Brothers, Chase Manhattan Bank, New York Life and many other corporations. Mr. Edwards confirmed that he possessed the particularly unique skills and knowledge that had been requested by Fancher.
5. Fancher was immediately called and told that the appropriate individual had been located, and because of the urgency of the situation, I would give Fancher Mr. Edwards phone number, and step back from the process because I personally trusted Fancher to "do the right thing with a finder's fee." Fancher agreed and asked for the phone number.
6. On information and belief, Fancher contacted Mr. Edwards and subsequently his Evolution partner, Dennis LaRock with news of Mr. Edwards. In next few days the parties met and Mr. Edwards was hired. LaRock confirmed this by telling me personally (we are neighbors) that, "I hired your friend." I mentioned the finder's fee that his partner Fancher had agree to, and LaRock told me that he had paid it to Mr. Edwards. Mr. Edwards naturally denied this, telling me in fact that he thought it inappropriate for me to discuss it with him (I agreed with him), and assuring me that he had not been paid my finder's fee. Within approximately ten days of the commencement of Mr. Edward's employment your deponent was informed by Mr. Edwards that he had been asked to be the "Project Manager." This attests to Mr. Edwards competency and value to the project.
7. On January 10, 1995, I emailed LaRock (annexed) a request for my fee as of the date Edwards began work for Evolution, December 27, 1994. LaRock called the following morning leaving curse words on my voice mail.
8. Mr. Edwards called later that day, insisting that he come to my home to discuss the matter because, according to Mr. Edwards, LaRock was making threats of violence that would be directed towards me by LaRock. When Edwards arrived I assured him that this was bluster, and not to worry about it.
9. That evening, January 10, 1995, at approximately 6:00 P.M., Fancher called to tell me that he was sorry about LaRock's conduct and not to worry about it. He told me that as a
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partner in the company he believed that he had made a deal with me for a finder's fee, that was clearly his understanding and that he would honor it when he could.
10. Approximately one month later, Fancher called to say he was about to become the "new" President of Evolution, LaRock was being bought out, and Fancher intended to pay the finder's fee when he received physical possession of Evolution's check book.
11. In fact on March 2, 1995, Fancher made an initial payment of $100 in cash (he claimed to be waiting for a large check from Planet ((subsidiary of the Dutch Telephone Company)) to clear), and on March 4, 1995 Fancher issued an Evolution check for $750.00. Because Fancher and I were friends I had not yet issued an Invoice because I understood there were problems in completing deliverable computer code in order for Planet to make a substantial six figure payment to Evolution.
12. On March 6, 1995, I emailed Fancher (annexed) requesting his rationale for paying me a total of $850, when Edwards had been employed since December 27, 1994, and at 10% as we had discussed, I was owed $1,600.
13. He replied in email (annexed) that evening, and I responded the following day, (also annexed).
14. Though your deponent is a layman a prima facia case exists because Fancher stated in his written email, March 6, 1995."The original contract which Dennis [LaRock] made with Mark [Edwards] was for $4000; the finder's fee I gave you was for a little more than twice 10% of that. It is being paid in the spirit of good faith and friendship and is not an acknowledgement that you acted on behalf of Evolution in the capacity of a professional headhunter." [Emphasis added.)
15. Fancher in his own writing clearly acknowledges the finder's fee, therefore resolving the threshold argument that a verbal contract, based on a meeting of the minds, exists in fact and under the law. Further, and critically, Fancher himself mentions "10%," thus acknowledging conversations Fancher held with your deponent.
16. Fancher claims to be acting in "good faith and friendship" when in fact the opposite is true. Your deponent has never before, or herein, claimed a "headhunter's fee," which would be upwards of $25,000, based (industry standard of 25%, total due after four months of
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continuous employment) on the gross first year's salary. I acted clearly as an agent/broker, under the long acknowledged construct of good faith and fair dealing.
17. When Fancher paid one dollar more than $400 he validated the argument that the fee in the instant matter is due and payable for the length of employment. An entity cannot engage services, continue to use those services and simply cut out an agent/broker, or even a headhunter, simply because they don't want to pay. Your deponent is of the belief that such common sense reasoning is validated by well settled New York State case law.
18. Your deponent is not claiming a finder's fee on one year's service, only on the amount of monies actually earned by Mr. Edwards. See, annexed Final Invoice and Final Statement.
19. Mr. Edwards reported to work at the offices of Evolution/Phantom five days a week, maintaining regular hours, for just over six months. He worked on computers and software provided by Evolution, Phantom and Planet, and performed work defined and under the direction of Fancher and his other partners, he did not work independently. By definition he could not have, it was a software team project controlled by Evolution, not by Mr. Edwards. Consequently, Mr. Edwards relationship was in fact that of an employee.
20. On information and belief, upon completion of the Evolution/Planet Internet contract in late July, Mr. Edwards was asked by Fancher to stay aboard as a marketing representative for the merged Evolution/Phantom entity, which was/is attempting to enter the business of World Wide Web consulting and presence providing (your deponent sincerely wishes them well). Because Mr. Edwards is a programmer by training, vocation and avocation he was forced to decline the opportunity.
21. Because I am neither a CEO, CPA or an attorney, I' cannot understand why Fancher placed all of his employees, including himself and other partners, with the sole exception of Mr. Edwards, on a payroll plan. Even your outraged deponent cannot imagine this was done to somehow and intentionally invalidate the legitimate claim herein.
22. I seek the direction of an Officer of This Court as to whether or not I have disclosure obligations under the law in regards to the fact that Mr. Edwards was an employee, although Evolution did not issue him standard payroll checks, or upon information and belief pay payroll taxes such as FICA, federal, state and city payroll taxes.
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23. The attached article from the New York Times, is instructive, but nowhere can I discover an obligation factor. Because I am not a disinterested party, I am in a quandary as to what would be appropriate conduct for a reasonable person under the circumstances.
24. All too often in life friendships are distorted and even lost over legitimate differences of opinion regarding verbal monetary agreements. In the instant case the defendant has in writing acknowledged his agreement to a finder's fee and also in writing, confirmed his knowledge of an agreed 10% finder's fee. He has made a partial payment based on his unilateral and flagrantly self-serving after the facts interpretation, and because he sits in a superior economic position with family investors of means, two companies, offices, and family-access to sophisticated legal counsel simply decides he doesn't want to pay the full amount.
25. It would be a travesty of justice to allow such greed, arrogance and intransigence to stand, let alone be rewarded by defendants' retaining monies legitimately owed to your deponent who is without means to retain counsel in order to bring this matter (as well as potential intentional prima facia torts, outside the jurisdiction of this venue) to Supreme Court. As a working lay person, I fully realize that systemic within the jurisprudence process, the small person without means is often at an intolerable disadvantage, but firmly believe that this jurisdiction was designed specifically to give individuals with little clout an opportunity for their "day in court."
26. Your deponent prays that wisdom will prevail and that a Judgment will be entered on behalf of the plaintiff for the maximum allowed under the jurisdiction of this court.
Dated: New York, New York
August 11, 1995
Kenneth R. Kappel
P.O. Box 1942 (mailing address)
107 West 26th Street
New York, NY 10011
212.620.5651
ANNE L. LOUIE
NOTARY PUBLIC, STATE OF N.Y.
QUALIFIED IN QUEENS COUNTY
CERTIFICATE FILED IN NY COUNTY
COMMISSION EXPIRES JUNE 1, 1997Sworn to before me
on the 11 day of
August, 1995.
NOTARY PUBLIC
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