Porcelli v. JetSmarter (SDNY) Complaint
Porcelli v. JetSmarter (SDNY) Complaint
Porcelli v. JetSmarter (SDNY) Complaint
MARCELLO PORCELLI
against
COMPLAINT and
Defendants JURY DEMAND
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Defendants Jetsmarter, Inc., David M. Sheridan, Carla Yerovi and John Does 1-5, states
as follows:
1. This Court has original jurisdiction over this action under 28 U.S.C. §1332 as this
action seeks monetary damages resulting from the Defendants’ actions in an amount
exceeding $75,000.00, and there is complete diversity of citizenship between Plaintiff and
all Defendants.
U.S.C. § 1391(b)(2), as Plaintiff works in New York, New York, a substantial part of the
events or omissions giving rise to the claim occurred within New York.
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PARTIES
the laws of the State of Delaware and is registered to do business in the State of Florida.
Jetsmarter’s world headquarters is located at 500 East Broward Blvd., Fort Lauderdale,
Florida. Jetsmarter allegedly has multiple other points throughout the world. Jetsmarter
6. John Does 1 – 4 are persons who are the officers or managers of Jetsmarter, who
developed and approved the marketing and sales materials and may have otherwise been
FACTUAL BACKGROUND
7. On or about November, 2015, having already seen the advertising material placed
into the marketplace by Defendant Jetsmarter promoting the benefits offered by its
8. Defendant Sheridan stated that the “membership” was a one year, renewable,
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commitment which would require an initial fee of $1,500.00 with a locked in annual fee of
$9,000.00. Plaintiff was informed that this fee was provided at a substantial discount to
10. Based upon these express representations, Plaintiff paid the entire $10,500.00
11. Plaintiff began to utilize the services and found the services to be excellent.
12. Prior to his renewal in July of 2016, Defendant Sheridan explained to Plaintiff that
another “level” of the program, the “Sophisticated Membership,” was offered which
provided additional benefits to the of the basic program already purchased and utilized.
13. Defendant Sheridan exerted pressure upon Plaintiff to purchase a three year
membership period providing inducements such as discounts, flight credits and benefits
which were not of any interest to Plaintiff. Plaintiff refused the three year program but
14. For these enhancements, Plaintiff was charged $39,990.00 along with a one-time
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initiation fee of $4,950.00 and made payment through his credit card paying a fee of 5%
therefore.
15. Plaintiff utilized the Jetsmarter services and the same were acceptable for the year.
16. Again, prior to the expiration of the renewal period, in May, 2017, Defendant
Sheridan tried to convince Plaintiff to upgrade to the three year program. Plaintiff refused
to agree to the multiyear contract but renewed his membership for another year.
17. During the program year, Plaintiff realized that the free helicopter services were
not being offered, but when Plaintiff inquired of Defendant Sheridan asking the reasons,
Plaintiff was informed the cancellation was due to “the recent accident last week [and]
we have suspended them short term.” The accident referred to was with a non-affiliated
company however the free helicopter service never returned and no other alternative was
provided to Plaintiff for ground transportation. Along with that discussion, Defendant
Sheridan once more began pressing for Plaintiff to enter into a three year commitment.
18. Rejecting Defendants’ pressure for a long term contract, on or about June 11,
19. Less than two months thereafter, Jetsmarter unilaterally terminated Plaintiff’s the
ability for Plaintiff to fly for free within the United States under the long term and
established token system. Instead a pay per flight system was imposed. While certain
credits were offered as a consolation, Jetsmarter refused to refund the membership fee.
This was a serious and material departure from the program that Plaintiff had purchased
and was promised. In an effort to obtain information and details, Plaintiff reached out for
Defendant Sheridan on numerous occasions but Plaintiff’s calls and emails went ignored.
20. Plaintiff did receive a response from Defendant Yerovi who apologized for the
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change in the program and explained to him in greater detail the new pay-per-flight
system and the program which was unilaterally imposed upon Plaintiff. In essence, the
program provided to him $2000.00 per month in flight credits to be paid against the cost of
travel – which often ran over $2500.00 per seat. This severely limited Plaintiff’s ability to
travel and substantially diminished the program that he had just purchased weeks before.
21. When Plaintiff asked for his funds to be returned, he was told that such an option
Defendant Yerovi and on October 9, 2018, she informed Plaintiff that she was “happy” to
“offer” him the ability” to convert his membership to something entitled “Signature Plus.”
- The issuing four additional “signature” members to his membership (an item of no
benefit to him);
- A 2% flight credit rebate for flight purchases;
- Prior notification of flights before others
- A cap on his flight cost of $600/hr.
- The purchase of empty legs for $1.
- Book flight with Jetsmarter’s “low-price guaranty.”
- “Exclusive” access to events;
- 24/7 concierge services
23. Plaintiff stated to Defendant Yerovi that he had no interest in anything that
deviated from his original membership. However, the Defendants Yerovi and Jetsmarter
essentially converted his membership regardless of his desires and, to make matters all the
worse, altered the program such that Plaintiff would only be able to utilize 25% of his
credits toward travel and that he was required to pay for the balance in cash. Thus, not
only had Plaintiff paid the entire year’s fee up front expecting the continuation of free
travel, he was now required to expend 75% of the cost of any flight he wanted to utilize.
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services he had from utilizing the Jetsmarter program versus other programs. The value
of the free services to Plaintiff which was no longer available accrued to approximately
$60,000.00 per month or $2,257,836.00 over the lifetime of his contracts prior to the
As ten months remained on Plaintiff’s contract with Defendant, Defendant’s loss of his
COUNT I
Breach of Contract
25. Plaintiff incorporates the foregoing allegations as if fully set forth herein.
26. Plaintiff and Defendant entered into an on-line agreement through which in
exchange for annual payments, Defendants Jetsmarter, through its agents David Sheridan
27. The agreement entered into by the parties was in a format which was later changed
its execution. Defendant has since made changes to the on-line agreements such that the
prior version entered into by Defendant is now lost to him. The link which existed to in
the email only brings him to the current version of Jetsmarter’s contract rather than the
28. Although Plaintiff had several years of use of Plaintiff’s program - for which he
made annual payments – less two months after renewing in 2018, Plaintiff came to learn
that Defendant Jetsmarter had unilaterally changed the program and that the program
offered to Plaintiff was no longer being offered. Plaintiff was now required to pay for his
29. As a result of these changes, Plaintiff has been unable to utilize the services for
which he had contracted and purchased. The very essence of the contract had been
30. In the first change imposed upon Plaintiff, he was provided certain credits but even
that arrangement was changed by Defendant Jetsmarter within a few weeks requiring
Plaintiff to pay for 75% of the cost of flights which cost was determined by Defendant
Jetsmarter itself.
31. Based upon Defendants’ own assessment of the cost which would be incurred by
Plaintiff in order to retain duplicate services, the “benefit of the bargain,” Plaintiff would
32. As a result of their actions and conduct, Defendants have breached the contract
COUNT II
Violation of Good Faith and Fair Dealing
33. Plaintiff incorporates the foregoing allegations as if fully set forth herein.
34. Intrinsic in every contract is the duty to utilize good faith and fair dealing and
imposes on each party a duty of good faith and fair dealing in its performance. Common
law calls for substantial compliance with the spirit, not just the letter, of a contract in its
performance.
35. In entering into an agreement there exists an implied covenant that the parties will
act in good faith and deal fairly, and that neither party shall do anything that will have the
effect of destroying or injuring the right of the other party to receive the fruits of the
contract. Defendant Jetsmarter did not act consistent with this principal when it
unilaterally changed the very essence of the agreement entered into with Plaintiff.
36. As a direct and proximate result of Defendant JetSmarter’s conduct, Plaintff has
suffered damages.
COUNT III
37. Plaintiff incorporates the foregoing allegations as if fully set forth herein.
38. In attempting to advertise, market and sell the flight services, Defendants
Jetsmarter and Sheridan and Yerovi made an express representation that Plaintiff’s sole
obligation was to make his payments, in full and in advance, and in exchange therefore he
would receive all of the benefits set forth in detail in Paragraph 9 hereof. Defendants
specifically advertised that a customer would be able to obtain a seat on its jets with no
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39. The marketing platform was developed by John Doe 1 and 2, fictional persons
who will be named after discovery is conducted, and such marketing was approved by
Jetsmarter’s supervisors/officers John Does 3 and 4, also fictional persons who will be
40. Shortly after renewing with Defendants in August, 2018, Plaintiff discovered that
the program sold to him would no longer be adhered to by Jetsmarter and that he would be
required to utilize a credit system to utilize the travel features. However, in a very short
period of time thereafter, Defendants, through Yerovi, once more changed Plaintiff’s
program permitting him the ability to utilize only 25% of the travel cost in credits and
41. Defendants, in seeking payment for travel, solicited, charged and received a 5%
fee for the use by Plaintiff of his credit card in violation of GBL §518.
represented as requiring only a single, one-time payment which permitted Plaintiff to fly
on private jets - without further cost or expense - for travel within 3.5 hours. This
representation was false and deceptive. Within weeks of purchasing the program form
Defendants, Plaintiff was informed that the program as structured would no longer be
offered and that the use would be limited through a “credit” system. Thereafter,
Defendants unilaterally again made changes which disallowed any free travel whatsoever
and required Plaintiff to pay 75% of the cost of the travel. Moreover, Defendants’
COUNT IV
(Respondeat Superior)
44. Plaintiff incorporates the foregoing allegations as if fully set forth herein.
45. Jetsmarter and its agents, John Does 1 - 4 instructed or at least permitted
Defendants Sheridan and Yerovi to utilize its name in the carrying out of marketing and
47. When marketing, advertising and selling the services which is the subject matter
hereof, Defendant was acting within the scope of his agency or employment.
48. Jetsmarter and its agents, John Does 1 -4 had a duty to properly train and supervise
Sheridan and Yerovi which Jetsmarter and John Does 1-4 failed to carry out.
49. The actions taken by Defendant Doidge in the marketing and sale of the property
FIFTH COUNT
(Fraud)
51. Plaintiff incorporates the foregoing allegations as if fully set forth herein.
52. In communications from Jetsmarter and Sheridan to Plaintiff prior to his renewal
in August, 2018, Defendants made material representations about, inter alia, the cost and
53. The representations made by Defendants were false. Within weeks of the
renewal Defendants, through Defendant Yerovi, altered the program to a credit system
and then altered the program yet again within another few weeks by requiring Plaintiff to
54. Defendants knew or should have known that these representations to Plaintiff
were false and misleading and that Plaintiffs would rely upon the same.
55. Plaintiff reasonably relied upon Defendants’ statements and enrolled with
(3) Awarding Plaintiff Marcello Porcelli his costs and disbursements and
reasonable allowances for the fees of plaintiff’s counsel and experts, and reimbursement
of expenses;
(4) Awarding Plaintiff Marcello Porcelli counsel fees prejudgment interest; and
(5) Awarding such other and further relief the Court deems just and equitable.
Plaintiffs requests a jury trial for any and all Counts for which a trial by jury is
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permitted by law.