'UN'ITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DANIEL T. RUSSO , on behalf of himself and all others similarly situated, Plaintiff, -vCase No.: TODD BRUCE, GORDON THOMPSON, and CRYSTALLEX INTERNATIONAL CORPORATION, Defendants. C CLASS ACTION COMPLAINT Plaintiff Daniel T. Russo, by his attorney, on behalf of himself and all others similarly situated, alleges the following for his complaint. Plaintiff's allegations are based on personal knowledge as to himself and his acts, and as to all other matters based upon his attorneys' investigation which included, among other things, a review of public filings, analysis of publiclyavailable news articles and reports, press releases and other matters of public record. NATURE OF THE ACTION 1. This a class action on behalf of all purchasers of the common stock of Crystallex International Corporation (&quot;Crystallex&quot; or the &quot;Company&quot;) between July 28, 2005 and April 30, 2008, inclusive, (the &quot;Class Period&quot;), seeking to pursue remedies under the Securities Exchange Act of 1934 (the &quot;Exchange Act&quot;). JURISDICTION AND VENUE 2. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. 1331, 1337 and 1367 and Section 27 of the Exchange Act (15 U.S.C. 78aa). 3. This action arises under Sections 10(b) and 20(a) of the Exchange Act (15 U.S.C. 78j(b) and 78t(a)) and Rule IOb-5 <a href="/keyword/promulgated-thereunder/" >promulgated thereunder</a> (17 C.F.R. 240.1Ob-5). 4. Venue is proper in this <a href="/keyword/district-pursuant/" >district pursuant</a> to Section 27 of the Exchange Act (15 U.S.C. 78aa) and 28 U.S.C. 1391(b) and (c). Substantial acts in furtherance of the alleged fraud and/or its effects have occurred within this District. The shares of Crystallex are traded on the American Stock Exchange (&quot;AMEX&quot;). In addition, defendant Crystallex maintains an affiliate office in this District. 5. In connection with the acts and omissions alleged in this complaint, defendants, directly or indirectly, used the means and instrumentalities of interstate commerce, including, but not limited to, the mails, <a href="/keyword/interstate-telephone-communications/" >interstate telephone communications</a> , and the facilities of the national securities markets. PARTIES 6. Plaintiff purchased Crystallex common stock during the Class Period, as set forth in the accompanying certification which is incorporated herein by reference, and was damaged thereby. 7. Defendant Crystallex together with its subsidiaries, engages in the exploration, development, mining, production, and processing of gold in Venezuela. The company owns interests in the Las Cristinas project. The company also has interests in Tomi operations, the Lo Increible properties, and the Revemin mill located in Bolivar State, Venezuela. Crystallex is headquartered in Toronto, Canada. 8. The individual defendants, at all times relevant to this action, served in the capacities listed below and received substantial compensation: 9. Todd Bruce (&quot;Bruce&quot;) was the Chief Executive Officer from 2003 until his resignation on February 2007. 10. Gordon M. Thompson (&quot;Thompson&quot;) is the former President, Chief Executive Officer and Director of the Company. Mr. Thompson held these positions from 2007until his resignation on June 3, 2008. 11. The Individual Defendants, as senior officers and/or directors of Crystallex, were controlling persons of the Company. Each exercised their power and influence to cause Crystallex to engage in the fraudulent practices complained of herein. 12. Each of the defendants is liable as a participant in a fraudulent scheme and course of business that operated as a fraud or deceit on purchasers of Crystallex common stock, by disseminating materially false and misleading statements and/or concealing material adverse facts. As part of this scheme, defendants : (i) deceived the investing public regarding Crystallex' s business , its finances and the intrinsic value of Crystallex' s common stock ; and (ii) caused plaintiff and other members of the Class to purchase Crystallex common stock at artificially inflated prices. PLAINTIFF'S CLASS ACTION ALLEGATIONS 13. Plaintiff brings this action as a class action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3) on behalf of a Class, consisting of all persons who purchased or otherwise acquired Crystallex common stock between July 28, 2005 and April 30, 2008 inclusive (the &quot;Class Period&quot;), and who were damaged thereby. Excluded from the Class are defendants, members of the immediate family of each of the Individual Defendants or any entity in which any excluded person has a controlling interest, and the legal representatives, heirs, successors and assigns of any excluded person. 14. The members of the Class are so numerous that joinder of all members is impracticable. While the exact number of Class members is unknown to plaintiff at this time and can only be ascertained through appropriate discovery, plaintiff believes that there are thousands of members of the Class located throughout the United States. As of December 31, 2007, there were reportedly more than 261,659,072 shares of Crystallex common stock outstanding. During the Class Period, Crystallex common stock was actively traded on the American Stock Exchange AMEX under the symbol &quot;KRY.&quot; Record owners and other members of the Class may be identified from records maintained by Crystallex and/or its transfer agents and may be notified of the pendency of this action by mail, using a form of notice similar to that customarily used in securities class actions. 15. Plaintiff s claim is typical of the claims of the other members of the Class as all members of the Class were similarly affected by defendants' wrongful conduct in violation of federal law that is complained of herein. 16. Plaintiff will fairly and adequately protect the interests of the members of the Class and has retained counsel competent and experienced in class and securities litigation. 17. Common questions of law and fact exist as to all members of the Class and predominate over any questions solely <a href="/keyword/affecting-individual-members/" >affecting individual members</a> of the Class. Among the questions of law and fact common to the Class are: a. whether the federal securities laws were violated by defendants' acts and omissions as alleged herein; b. whether defendants participated in and pursued the common course of conduct complained of herein; c. whether documents , press releases , and other statements disseminated to the investing public and the Company's shareholders during the Class <a href="/keyword/period-misrepresented/" >period misrepresented</a> material facts about the business, finances, financial condition and prospects of Crystallex; d. whether statements made by defendants to the investing public during the Class <a href="/keyword/period-misrepresented/" >period misrepresented</a> and/or omitted to <a href="/keyword/disclose-material-facts/" >disclose material facts</a> about the business, finances , value, performance and prospects of Crystallex; e. whether the market price of Crystallex common stock during the Class Period was artificially inflated due to the <a href="/keyword/material-misrepresentations/" >material misrepresentations</a> and failures to correct the <a href="/keyword/material-misrepresentations/" >material misrepresentations</a> complained of herein; and f. the extent to which the members of the Class have sustained damages and the proper measure of damages. 18. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy since joinder of all members is impracticable. Furthermore, as the damages suffered by individual Class members may be relatively small, the expense and burden of individual litigation make it impossible for members of the Class to individually redress the wrongs done to them. There will be no difficulty in the management of this suit as a class action. <a href="/keyword/substantive-allegations/" >substantive allegations</a> A. Background 19. Crystallex's principal asset is its interest in the Las Cristinas gold project located in Sifontes, Bolivar State, Venezuela. 20. On May 3, 2004, Crystallex issued a press release announcing the completion of its Environmental Impact Study (EIS) for Las Cristinas. According to the Company, &quot;The final EIS for the 20,000 tonne per day (&quot;tpd&quot;) ton project was submitted to the CVG and the Ministry of the Environment and Natural Resources (&quot;MARN&quot;) on April 15, 2004. Receipt of all required permits to start construction of Las Cristinas is expected later in 2004.&quot; 21. On August 4, 2004, the Company issued a press release confirming the land occupation permit for Las Cristinas. CEO Todd Bruce stated: &quot;The Land Occupation Permit is a critical step in the process of getting Las Cristinas permitted and its confirmation is a prerequisite to securing the final &quot;Permit to Impact Renewable Natural Resources&quot; which will complete the permitting process. Given the level of The Corporation Venezolano de Guayana (&quot;CVG&quot;) and Crystallex involvement in the permitting process and the positive response of MARN to date, we remain confident that Las Cristinas will be fully permitted this fall which will see full scale construction commencing as scheduled. As we speak our site activities continue to accelerate and tarring the airstrip to accommodate the increased demands that will be imposed by the project.&quot; 22. On March 31, 2005, the Company issued a press release reporting its 2004 year end results. Former CEO Todd Bruce stated in relevant parts: 2004 marked a year of milestones for Crystallex as the Company continued to meet the challenges on the road to converting the potential of Las Cristinas into actual value for shareholders by advancing the project towards its target of commencing gold production in 2006. We anticipate receiving the permit, the Permit to Impact Natural Resources, from the Ministry of the Environment and Natural Resources (&quot;MARC&quot;) in Q-2, of 2005 which will mark the commencement of the construction stage. This target for the issuance of the permit has been reflected as MARN's objective in public comments recently made by an influential politician form Bolivar State, Venezuela after meeting with MARN representatives We are thus at a very advanced stage of the permit process and are actively engaged with MARN in terms of meeting the Ministry's time objective. Our focus on securing the permit is absolute and the permit is obviously paramount amongst our near term objectives. B. The False and Misleading Statements Regarding Permit 23. The Class Period begins on July 28, 2005. On that date, the Company issued a press release stating &quot;Crystallex Confirms Permit Position .&quot; According to the press release, CEO Todd Bruce reiterated from the Company's offices in Caracas that the company was not aware of any developments with respect to its Las Cristinas project in Venezuela. &quot;I would again assure the marketplace that we are actively engaged with government officials in moving the permitting process to a conclusion. We remain unaware of any technical impediment to the granting of the permit.&quot; 24. The foregoing statements were false and misleading because the Company was far from obtaining any permit from the Venezuelan government as set forth in paragraphs 47-48. 25. On July 28, 2005, Crystallex issued a press release confirming the Company's permit position. According to the press release, CEO Todd Bruce, reiterated the Company is not aware of any developments with respect to its Las Cristinas project in Venezuela. &quot; I would again assure the marketplace that we are actively engaged with government officials in moving the permitting process to a conclusion .&quot; &quot;I am presently in Venezuela actively involved in the permitting process and we remain unaware of any technical impediment to the granting of the permit.&quot; 26. The foregoing statements were false and misleading for the reasons set forth above in paragraphs 47-48. 27. On March 7, 2006, the Company issued a press release announcing the approval of the Permit to Impact Natural Resources for an aggregate quarry for the Las Cristinas Project. According to the press release, Todd Bruce stated: &quot;MARN 's approval of the Permit to Impact Natural Resources for the Albino aggregate quarry that will service the Las Cristinas project is a key development as it brings us closer to the issuance of the Permit to Impact Natural Resources for the Las Cristinas project itself.&quot; 28. The foregoing statements were false and misleading for the reasons set forth above in paragraphs 47-48. 29. On March 26, 2006, Crystallex issued a press release announcing the approval of the Las Cristinas Gold Project. CEO Todd Bruce stated &quot;This formal approval by the Ministry Basic Industry and Mines (&quot;MIBAM&quot;) represents the crucial cornerstone for the development of the Las Cristinas gold project and also represents the final external input required by the Ministry of the Environment and Natural Resources to complete the permitting process. We anticipate receiving the MARN permit in the near term which will allow us to immediately begin construction of the Las Cristinas Gold Project.&quot; 30. The foregoing statements were false and misleading for the reasons set forth above in paragraphs 47-48. 31. On November 15, 2006 news article posted by Seeking Alpha titled &quot;Crystallex Las Cristinas Permit Virtually Guaranteed : Shares Jump on News. CEO Todd Bruce was quoted stating: &quot;the company attended the recent Venezuelan Canadian Business Forum and that dialogue was `extremely constructive.' Cystallex management was able to speak with representatives of the MARN and confirm that MARN is expediting the process to issue the permit as soon as possible.&quot; The news release concluded with the following statement: Despite the troubled past Crystallex has had in gaining approval, these statements should clear any doubt as to the future issuance of a permit to Crystallex. The stock is certainly reflecting this optimism and should finally be able to trade without the uncertainty over the permit weighing down on Crystallex shares. 32. The foregoing statements were false and misleading for the reasons set forth above in paragraphs 47-48. 33. On March 6, 2007, Seeking Alpha. com posted a news article titled: Crystallex's CEO: `We're Closer Than Ever To Venezuelan Mining Permit.' According to the article, during an interview conducted by the FP Trading Desk current Crystallex CEO Gordon Thompson was asked how close the company was to getting a mining permit? Gordon Thompson responded &quot;Closer than we've ever been before. We're at the final step in the Venezuelan process, getting the environment permit. The ministry of the environment came back to us about two months ago with seven areas they wanted us to deal with. And we've adequately dealt with those. It's our feeling that it should be here fairly soon. &quot;There ' s nothing in the way of it happening.&quot; 34. The foregoing statements were false and misleading for the reasons set forth above in paragraphs 47-48. 35. On April 3, 2007, Seeking Alpha. com posted an article titled Crystallex Continues to Confuse Investors by J.L. Bane. According to the article Crystallex CEO Gordon Thompson was interviewed by the Globe and Mail to explain how extremely positive and happy they were that Gold Reserve had received its approval, as it is &quot;proof that the Chavez government, which others fear will follow through on threats to nationalize the mining industry, is in fact looking to develop its resources with the private sector to create jobs and government income.&quot; During the interview Thompson further stated &quot;We got our permit under the new process established by the Chavez government , which creates a situation where we have a partner, (the Corporation Venezolano de Guayana or CVG), that takes longer.&quot; 36 The foregoing statements were false and misleading for the reasons set forth above in paragraphs 47-48. 37. According to an April 11, 2007 Globe newspaper article regarding the Crystallex permit CEO Gordon Thompson hinted that a permit would be obtained after the Easter holiday. 38. The foregoing statement was false and misleading for the reasons set forth above in paragraphs 47-48. 39. On May 4, 2007, Seeking Alpha.com posted a news article titled: &quot;Crystallex Jumps on CEO Comments.&quot; According to the article, CEO Thompson stated &quot;the environmental impact permit is the final stage in the process, with a technical review completed by MARN before permit issuance. The company took a positive step forward five or six weeks ago to provide final documentation, which was submitted by the CVG, to MARN for technical review which is currently taking place at this time. Thompson further stated he hoped that it comes (the Permit) sooner rather than later. 40. The foregoing statements were false and misleading for the reasons set forth above in paragraphs 47-48. 41. On February 28, 2008, Crystallex issued a press release updating shareholders on the Las Cristinas Project. The press release discussed an overall recap of achievements and progress for the Las Cristinas gold project in South Eastern Bolivar State, Venezuela. In his concluding remarks, CEO Thompson stated: &quot;The National Assembly hearing and subsequent report, the correspondence from the MinAmb and numerous meetings with senior Government officials continue to confirm our expectation that the permit will be issued, which will allow us 10 to launch the long anticipated construction phase for the benefit of the local communities, stakeholders and shareholders.&quot; 42. The foregoing statements were false and misleading for the reasons set forth above in paragraphs 47-48. 43. Since approximately 2005, the Company has led investors and the general public to believe through numerous press releases and news release commentaries that &quot;the permit&quot; for the Las Cristinas Project was guaranteed to be issued to the Company. 44. The foregoing statements were false and misleading for the reasons set forth above in paragraphs 47-48. 45. Crystallex knowingly obscured the full extent of the problems the Company was experiencing with the Venezuelan government regarding the permit for the Las Cristinas Project. THE TRUTH IS REVEALED 46. During the Class Period, the Company falsely and misleadingly announced that Crystallex was &quot;on track&quot; to receive the permit allowing the Company to move forward. 47. On October 4, 2007, Ricardo Gutierrez , Deputy for the Economic Development Standing Committee, coordinated a meeting concerning the Las Cristinas mining issue and Crystallex. According to the transcript, Crystallex had not been granted the permit by the MARNR. 48. On April 30, 2008, the Director General of the Administrative Office of Permits at the Ministry of the Environment and Natural Resources of Venezuela (&quot;MinAmb&quot;) issued a communication to the CVG, the owner of the Las Cristinas concessions, denying the permit for the Las Cristinas project . According to the communication, the Director General cited sensitivities surrounding indigenous peoples, the small miners and the environment in the area 11 generally known as the Imataca Forest Reserve, which contains a number of mining projects, which like those of Crystallex, are seeking the required permits to continue their development and exploitation. As the above true facts demonstrate, Defendants did not have, during the Class Period, a reasonable expectation that the Company would receive the required permit. 49. The Company's stock fell on the news from a closing price of $1.68 on April 29, 2008 to a closing price of $0.91 on April 30, 2008, on heavy volume: 18,448,900 million shares. APPLICABILITY OF PRESUMPTION OF RELIANCE: FRAUD-ON-THE-MARKET DOCTRINE 50. At all relevant times, the market for Crystallex common stock was an efficient market for the following reasons, among others: a. Crystallex common stock met the requirements for listing, and was listed on the AMEX from 2005 through 2008. Crystallex is actively traded, on the American Stock Exchange, a highly efficient market; b. SEC; a. Crystallex stock was followed by securities analysts employed by major brokerage firms who wrote reports which were distributed to the sales force and certain customers of their respective brokerage firms. Each of these reports was publicly available and entered the public marketplace. b. Crystallex regularly issued press releases which were carried by national newswires. Each of these releases was publicly available and entered the public marketplace. 51. As a result, the market for Crystallex securities promptly digested current As a regulated issuer, Crystallex filed periodic public reports with the information with respect to Crystallex from all publicly-available sources and reflected such 12 information in Crystallex's stock price. Under these circumstances, all purchasers of Crystallex common stock during the Class Period <a href="/keyword/suffered-similar-injury/" >suffered similar injury</a> through their purchase of stock at artificially inflated prices and a presumption of reliance applies. NO SAFE HARBOR 52. The statutory safe harbor provided for forward-looking statements under certain circumstances does not apply to any of the allegedly false statements pleaded in this complaint. 53. Section 21 E of the Exchange Act expressly excludes the application of the Safe Harbor to forward-looking statements made with respect to the business or operations of the issuer, if the issuer, during the 3 year period preceding the date on which the statement was first made , issues penny stock . Section 21E(b)(1)(A) &amp; (C), 15 U.S.C. 78u-5(b)(1)(A) &amp; (C). 54. Crystallex issued penny stock in the three-year period preceding the statements plaintiffs allege to be false and misleading, as follows: A. During fiscal 2006 [January 2006 to December 2006] Crystallex sold 1,661,130 shares of common stock to several investors at $4.25 per share for total proceeds of $4,317,661. (2006 Form 40F, filed March 30, 2007 at 19). During March 2006, under the terms of the exchangeable promissory notes between Vengroup and ECM (Note 7), the Company issued 307,213 common shares to Vengroup as payment of $900,000 due to Vengroup on June 29, 2006. (Form 40-F filed March 30, 2007 at 19). During May 2006, upon SB's exercise of its exchange rights, the Company issued 3,765,841 common shares to SB as settlement of the $7.5 million exchangeable portion of the bank loan (Form 40-F filed March 30, 2007 at 20). During July2006, under the terms of the exchangeable promissory notes between Vengroup and ECM (Note 7), the Company issued 304,087 common shares to Vengroup as payment of $900,000 due to Vengroup on December 29, 2006. (Form 40-F filed March 30, 2007 at 20). B. C. D. 13 55. At all relevant times, Crystallex's common stock was &quot;Penny Stock,&quot;as defined in Section 3a(51) of the Exchange Act (15 U.S.C. 78(c)(51) and SEC Rule 3a-51-1 <a href="/keyword/promulgated-thereunder/" >promulgated thereunder</a> , 17 C.F.R. 240.3a-51-1. The specific statements pleaded herein were not identified as &quot;forward-looking statements&quot; when made. Nor was it stated with respect to any of the statements forming the basis of this complaint that actual results &quot;could differ materially from those projected.&quot; To the extent there were any forward-looking statements, there were no meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the purportedly forward-looking statements. Alternatively, to the extent that the statutory safe harbor does apply to any forward-looking statements pleaded herein, defendants are liable for those false forward-looking statements because at the time each of those forward-looking was made the particular speaker knew that the particular forwardlooking statement was false, and/or the forward-looking statement was authorized and/or approved by an executive officer of Crystallex who knew that those statements were false when made. <a href="/keyword/scienter-allegations/" >scienter allegations</a> 56. As alleged herein, defendants acted with scienter in that defendants knew that the public documents and statements, issued or disseminated by or in the name of the Company were materially false and misleading; knew or recklessly disregarded that such statements or documents would be issued or disseminated to the investing public; and knowingly and substantially participated or acquiesced in the issuance or dissemination of such statements or documents as primary violators of the federal securities laws. As set forth elsewhere herein in detail, defendants, by virtue of their receipt of information reflecting the true facts regarding 14 Crystallex and its business practices, their control over and/or receipt of Crystallex's allegedly materially misleading misstatements and/or their associations with the Company which made them privy to <a href="/keyword/confidential-proprietary-information/" >confidential proprietary information</a> concerning Crystallex were active and culpable participants in the fraudulent scheme alleged herein. Defendants knew and/or recklessly disregarded the falsity and misleading nature of the information which they caused to be disseminated to the investing public. This case does not involve allegations of false forwardlooking statements or projections but instead involves false statements concerning the Company's business, finances and operations. The ongoing fraudulent scheme described in this complaint could not have been perpetrated over a substantial period of time, as has occurred, without the knowledge and complicity of the personnel at the highest level of the Company, including the Individual Defendants. 57. The Individual Defendants engaged in such a scheme to inflate the price of Crystallex common stock in order to: (i) protect and enhance their executive positions and the substantial compensation and prestige they obtained thereby; and (ii) enhance the value of their personal holdings of Crystallex common stock and options. LOSS CAUSATION ALLEGATIONS 58. The defendants' fraudulent statements and omissions artificially inflated Crystallex's stock price during the Class Period, until the partial and full revelations of the truth were made as revealed above. COUNT I (Violations of Section 10(b) of The Exchange Act and Rule lOb-5 <a href="/keyword/promulgated-thereunder/" >promulgated thereunder</a> Against All Defendants) 59. Plaintiff repeats and realleges each and every allegation contained above. 15 60. Each of the defendants: (a) knew or recklessly disregarded material adverse non- public information about Crystallex's financial results and then existing business conditions, which was not disclosed; and (b) participated in drafting, reviewing and/or approving the misleading statements, releases , reports and other public representations of and about Crystallex. 61. During the Class Period, defendants, with knowledge of or <a href="/keyword/reckless-disregard/" >reckless disregard</a> for the truth, disseminated or approved the false statements specified above, which were misleading in that they contained misrepresentations and failed to <a href="/keyword/disclose-material-facts/" >disclose material facts</a> necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. 62. Defendants have violated 10(b) of the Exchange Act and Rule lOb-5 <a href="/keyword/promulgated-thereunder/" >promulgated thereunder</a> in that they (a) employed devices, schemes and artifices to defraud; (b) made untrue statements of material facts or omitted to state <a href="/keyword/material-facts-necessary/" >material facts necessary</a> in order to make statements made, in light of the circumstances under which they were made, not misleading; or (c) engaged in acts, practices and a course of business that operated as a fraud or deceit upon the purchasers of Crystallex stock during the Class Period. 63. Plaintiff and the Class have suffered damage in that, in reliance on the integrity of Plaintiff and the Class the market, they paid artificially inflated prices for Crystallex stock. would not have purchased Crystallex stock at the prices they paid, or at all, if they had been aware that the market prices had been artificially and falsely inflated by defendants' false and misleading statements. COUNT II (Violation of Section 20(a) of The Exchange Act Against the Individual Defendants) 64. Plaintiff repeats and realleges each and every allegation contained above. 16 65. The Individual Defendants Todd Bruce and Gordon Thompson acted as controlling persons of Crystallex within the meaning of Section 20(a) of the Exchange Act. By reason of their senior executive and/or board positions they had the power and authority to cause Crystallex to engage in the wrongful conduct complained of herein. 66. By reason of such wrongful conduct, the Individual Defendants are liable pursuant to 20(a) of the Exchange Act. As a direct and proximate result of these defendants' wrongful conduct, plaintiffs and the other members of the Class suffered damages in connection with their purchases of Crystallex stock during the Class Period. WHEREFORE , plaintiff prays for relief and judgment, as follows: 67. Determining that this action is a proper class action and certifying plaintiff as class representatives under Rule 23 of the Federal Rules of Civil Procedure; <a href="/keyword/awarding-compensatory-damages/" >awarding compensatory damages</a> in favor of plaintiff and the other Class members against all defendants, jointly and severally, for all damages sustained as a result of defendants' wrongdoing, in an amount to be proven at trial, including interest thereon; b. Awarding plaintiff and the Class their reasonable costs and expenses incurred in this action, <a href="/keyword/including-counsel-fees/" >including counsel fees</a> and expert fees; and c. Such other and further relief as the Court may deem just and proper. JURY TRIAL DEMANDED Plaintiff hereby demands a trial by jury. 17 Dated : New York, New York December 8, 2008 SARRAF GENTILE LLP j7 not Joseph Gentile [e-mail] Ronen Sarraf ronen@sarrafgentil e. com 11 Hanover Square, 2&quot;d Floor New York, New York 10005 Tel: [phone] Fax: [phone] VIANALE &amp;VIANALE LLP Kenneth J . Vianale 2499 Glades Road, Suite 112 Boca Raton , FL 33431 Tel: [phone] Fax: (561 ) 392-4775 Attorneys for Plaintiff 18