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DAG Jewish Directories, Inc. v. Y & R Media

August 12, 2010


The opinion of the court was delivered by: Richard J. Holwell, District Judge


Defendants have moved for sanctions, including dismissal, because plaintiff has submitted forged documents to the Court. In January 2010, the Court issued an opinion that noted apparent forgery and an intentional misquote in plaintiff's submissions. In February, plaintiff somewhat ironically moved for contempt against defendants, and submitted yet more forged documents in support of its contempt motion. That forgery was convincingly proven at an evidentiary hearing, and defendants subsequently made this motion for sanctions. For the reasons stated below, the Court grants defendants' motion for sanctions, dismisses the action with prejudice, and awards defendant attorneys' fees to be computed based on further submissions.

I. Background

The following facts are undisputed. Plaintiff DAG Jewish Directories is in the business of producing and distributing Jewish yellow pages-yellow pages geared towards the Jewish community, under the trade name "Dapey Assaf." Defendants Y&R Media and Yoahan Hayoun are also in the Jewish yellow page business. The two companies are connected in only one respect: Hayoun founded Y&R Media shortly after a brief tenure of employment with DAG's California office.

DAG filed the underlying complaint on September 10, 2009 alleging, inter alia, that Hayoun and Y&R were fraudulently misrepresenting themselves as affiliated with DAG in order to attract customers to Y&R's incipient Jewish yellow page service. The Complaint also alleged that Hayoun had signed an employment agreement with DAG and that he was in breach of certain restrictive covenants that it contained. On October 26, 2009, the Court issued a preliminary injunction ordering Y&R to:

(1) Desist and refrain from engaging in any marketing activity that is likely to deceive prospective customers as to their affiliation with plaintiff;

(2) Desist and refrain from physically using plaintiffs directory in marketing activities;

(3) Desist and refrain from making verbal reference to plaintiff or plaintiff's directory in the course of marketing activities, unless such references state clearly and unequivocally that defendants' proposed publication has no connection to plaintiff or plaintiffs publication;

(4) Hereafter maintain a record of each solicitation made in connection with the publication of defendants' directory. Such record must include the date of solicitation, whether the solicitation was made in person or by telephone, and the name, address and telephone number of the person solicited.


The Court declined to rule on the employment agreement at that time because there was substantial dispute between the parties as to whether Hayoun had actually signed it. Accordingly the Court reserved decision and ordered expedited discovery as to the employment agreement.


On January 07, 2010, following expedited discovery and supplemental submissions, the Court issued a Memorandum Opinion and Order [73] denying plaintiff's request for a preliminary injunction with respect to the employment agreement. The Court found that plaintiff had not demonstrated a likelihood of success on the merits because the validity of the contract and the enforceability of its covenants were both doubtful. The Court questioned the validity of the contract because:

Plaintiff has been unable to produce anyone with personal knowledge of [Hayoun's] signing the contract. Defendant himself affirms, as does his immediate supervisor, that he did not. The contract itself states that it was executed in Kew Gardens, New York, but the defendant was living in California at the time that he allegedly signed the document. Plaintiff's expert did not conclude that the signature in question was the defendant's, but rather found only that the signature resembles Hayoun[']s and indicated that an original of the document would need to be provided before he could make any conclusions. Plaintiff has been unable to produce an original of the document and has indicated that the originals are "missing." ...

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