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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
The School District of Philadelphia, Civil Action
Plaintiff, No.
5588
v.
Jury Trial Demanded
Christopher Akers a/k/a Lu Kaizhi a/k/a
Rand Lu a/k/a Zamir Summers, Kaizhi
Designs, gameMian, Appzhao, Inc.,
Defendants.
COMPLAINT - CIVIL ACTION
Plaintiff, The School District of Philadelphia (hereinafter "School District), by its
undersigned attorneys, hereby submits the following verified Complaint and alleges as
follows:
NATURE OF THE CASE
The School District brings this action for Trademark Infringement, Breach of
Contract, Misappropriation of Ideas, Conversion, Breach of Fiduciary Duty, Fraud,
Unjust Enrichment and Violation of the Computer Fraud and Abuse Act against
Defendant Christopher Akers ("Akers"), the School District's former web master, who
unlawfully used and diverted the School District's intellectual property, equipment and
paid time to develop mobile applications and web sites that he then used for his
personal profit and benefit. This action is also brought against the companies founded
by or affiliated with Akers and through which he has infringed the intellectual property
rights of the School District. In addition, the School i s t ~ i c t sc::eks an accounting of the
assets and profits of Defendants Akers, Kaizhi Designs, gameMian and Appzhao.
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JURISDICTION AND VENUE
1. This Court has original subject matter jurisdiction over this matter under 28
U.S.C. 1338(a) because it concerns questions of federal law arising under the Lanham
Act, 15 U.S.C. 1125 et seq. and the Computer Fraud and Abuse Act, 18 U.S.C. 1030
et seq.
2. This Court has supplemental jurisdiction over the claims arising under
state law pursuant to 28 U.S.C. 1367 as they are so related to claims in the action
within the original jurisdiction of this Court that they form part of the same case or
controversy.
3. This Court has personal jurisdiction over Defendants because Defendants'
principal place of business or residence is within this District, Defendants have
distributed, offered for sale, and sold products and services to persons within this
District, Defendants regularly transact and conduct business within this District, and
Defendants otherwise have made or established contacts within this District sufficient to
permit the exercise of personal jurisdiction.
4. Venue is proper under 28 U.S.C. 1391 (a), (b) and (c), because a
substantial part of the acts or omissions giving rise to the School District's claims
occurred in this District and also under 28 U.S.C. 1400(a) because the Defendants
reside in this district are subject to personal jurisdiction in this district at the
commencement of this action.
THE PARTIES
5. Plaintiff School District is a home rule school district of the first class,
organized and established pursuant to the Pennsylvania Public School Code and the
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Philadelphia Home Rule Charter, with its administrative offices at 440 N. Broad Street,
Philadelphia, Pennsylvania. The School District is the eighth largest school district in
the nation, by enrollment. It has close to 17,000 employees and has over 130,000
students enrolled. Daily, over 50,000 users visit its web site.
6. Upon information and belief, Defendant Christopher Akers, who also uses
the names Lu Kaizhi, Rand Lu and Zamir Summers, is an individual residing at 2162
Strahle Street, 1st Floor, Philadelphia, Pennsylvania 19152. Defendant Akers is the
CEO and Director of Appzhao, Inc. and principal owner and officer of Defendants Kaizhi
Designs and gameMian.
7. Upon information and belief, Defendant Kaizhi Designs is a sole
proprietorship that does business in Pennsylvania and is wholly-owned by Mr. Akers. It
has a business address of P.O. Box 1427, Pottstown, Pennsylvania 19464.
8. Upon information and belief, Defendant gameMian is a sole proprietorship
that does business in Pennsylvania and is wholly-owned by Mr. Akers. It has a
business address of 2162 Strahle Street, 1st Floor, Philadelphia, PA and/or P.O. Box
1427, Pottstown, Pennsylvania 19464.
9. Upon information and belief, Defendant Appzhao, Inc. is a Pennsylvania
corporation with a business address of P.O. Box 1427, Pottstown, Pennsylvania 19464.
FACTS
10. On October 14, 2008, The School District hired Defendant Akers as the
Webmaster for the School District in the Office of Information Systems, and paid him an
annual salary of Forty-Nine Thousand Fifty-Eight Dollars ($49,058).
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11. At all relevant times, Akers was an agent and fiduciary of the School
District through his employment as the School District's Webmaster.
12. The School District maintains and enforces a Code of Ethics that governs
the conduct of School District employees, which is attached as Exhibit A. The Code of
Ethics provides in pertinent part that:
a. All employees are expected to: a) Be honest; f) Obey all laws and
regulations; g) Avoid conflicts of interest or any appearance of impropriety
b. School District employees shall demonstrate personal
trustworthiness by being honest and avoiding any form of falsification,
misrepresentation, deception, or cheating.
c. A School District employee shall not use nor allow others to use for
non-District purposes District equipment, supplies or mailing lists nor engage in or allow
conduct resulting in the unauthorized use of any District resource. Except for
occasional and limited personal use that does not interfere with the performance of
official duties or create an appearance of impropriety, a School District employee shall
not use nor allow others to use District facilities, equipment, supplies or mailing lists for
personal purposes.
d. The time and services of all School District employees during
working hours are assets of the District that should be used only for School District
business. A School District employee shall avoid conducting personal business on
District time.
e. "After leaving the District by resignation, retirement or termination,
School District employees are restricted from providing certain types of services for a
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period of twe!ve (12) months ... [and] are restricted ... from representing any
individual or business entity before the School District for a period of one year: .. This
includes contracting with employees who held position of substantial responsibility in an
area of service to be performed by contract, contracting with a business where the
former School District employee serves as an officer, principal, partner, major
shareholder and where the School District employee held a position of substantial
responsibility in the area of service to be performed.
f. A School District employee shall not make improper use of
computer and internet technology. Unacceptable uses of technology are detailed in the
District's 'Computing and Internet Acceptable Use Policy.
13. The School District's Acceptable Use Policy, which is attached as Exhibit
Band is incorporated by reference into the Code of Ethics, governs employees' use of
the School District's private network. The Acceptable Use Policy includes, among
others, the following rules:
a. Users may not use the District's private network to engage in illegal
acts, such as ... accessing or sharing unauthorized copyrighted music, movies, and
other intellectual property, etc.
b. Users will not install or reproduce unauthorized or unlicensed
software on District resources.
c. Users may not plagiarize works that they find on the Internet or
other resources.
d. Users may not use technology resources and Internet for private
business activities or unreasonable personal use.
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e. Users are responsible for the use of their individual acr.P-ss
account(s) and should take all reasonable precautions to prevent others from being able
to use their account(s), including coworkers, friends, or family. Under no conditions
should a user provide his/her password to another person.
14. On October 7, 2008, Defendant Akers signed an acknowledgement that
he fully read, understood and had in his possession a copy of the School District Code
of Ethics, which is attached as Exhibit C.
15. Compliance with the Code of Ethics and Acceptable Use Policy is an
explicit condition of employment with the School District.
16. As Webmaster, Akers was principally responsible for maintaining and
updating the School District's web site, which is one of the primary means through
which the School District communicates daily with its thousands of students, families
and employees. He was also responsible for responding to inquiries directed to the
webmaster email address, and, when necessary, developing software programs needed
to implement web site features.
17. At all relevant times, Akers' work schedule was Monday through Friday,
9:30 a.m. until 5:15 p.m.
18. On April 15, 2009, just six months after his hire, Akers created files on the
IMAC desktop issued by the School District for Akers' use as a School District employee
(together with his School District-issued laptop, referred to herein as "work computers")
for an application called Comic Wars.
19. In July 2009, Mr. Akers purchased an iPhone developer program.
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20. Additional files related to Comic Wars were created and modified on
Aker's work computers through May 2010, the same month Akers received a letter from
Marvel Comics demanding that the creators of Comic Wars cease and desist using
Marvel Comics' copyrighted images in the Comic Wars application and web site.
21. The images that Akers had unlawfully used and modified for Comic Wars,
were stored on Akers' work computers in violation of the School District's Code of Ethics
and Acceptable Use Policy.
22. Around the same time that Akers' was forced to cease and desist his
unlawful use of images for his Comic Wars application, Akers created files and folders
on his worf... computers for an application called Comic Babies, which were modified
through November 2010.
23. Simultaneously while developing Comic Wars and Comic Babies,
beginning in March 2010, Akers created files and folders on his work computers that
were later used in an iPhone application and web site called theteachersofphilly.
24. The files later used in theteachersofphilly application and web site
contained source code, articles related to a teacher who would later be cast as the hero .
of the application, web site images, screen recordings for simulations and advertising
materials for the applications.
25. The teachersofphilly application incorporated the School District's
trademark and other School District intellectual property, such as graphics designed and
owned by the School District.
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26. On March 13, 2010, Akers purchased a domain for
Gamemian.com and comic-wars.com. Defendant gameMian later registered the
domain name theteachersofphilly.com using Akers' personal credit card.
27. In September 2009, Mr. Akers used his work computer during work hours
to create a contract detailing service packages and fees for Defendant Kaizhi Designs
for the following services: web site static pages, web application, e-commerce, dynamic
site pages, CMS software application, updates and maintenance.
28. In addition, various web projects were found on Akers' work computer that
were unrelated to his Schoo! District duties and assignments, but for which Akers' had
created and modified files during his normal work hours.
29. Akers never sought nor received permission to perform work for
Defend<;int Kaizhi Designs, Defendant gameMian or for his own personal rofit on
School District time.
30. Akers' use of School District technology resources for private business
activities violated the School District's Acceptable use policy and Code of Ethics.
31. Not only did Akers create and modify files unrelated to his School District
work during hours for which he was paid to work for the School District, but also in
numerous instances from 2008 through 2011, Akers accrued or took comp time on
dates he spent time working on projects unrelated to the School District.
32. Akers never paid nor reimbursed the School District from profits earned by
Defendant Kaizhi Designs, Defendant gameMian or by himself for the comp time he
claimed to have earned or for the work Akers performed during work hours using School
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District assets on b e h ~ f of Dafendants Kaizhi Designs, gameMian or himself even
though he was paid by the School District for that time.
33. Akers deceived his supervisor regarding his activities and, during his
employment with the School District, never revealed the work that he was doing for
Defendants Kaizhi Designs, gameMian, or for his own personal profits and benefit,
including his development of Comic Wars, Comic Babies and other web projects
unrelated to the School District.
34. From the beginning of his employment, Akers had turned around projects
slower than other web developers. His supervisor assumed Akers was performing his
best and simply had limited abilities.
35. Frequently, Akers was delinquent in managing and responding to email
addressed to the Webmaster, often requiring Akers' supervisor to reassign Akers' work
to other staff.
36. In or around January 2011, Akers' work performance steadily declined as
he repeatedly reported to his supervisor and team that he could not complete his
Webmaster responsibilities.
37. The excuse he offered was that he was working on special assignments
for the then-School Superintendent, which prompted his supervisor to meet with and
coordinate Akers' work assignments with the School District's Chief of Communications.
38. Following that meeting, Akers' supervisor and the Chief of
Communications were in regular contact to ensure that Akers' assignments were
coordinated and properly prioritized.
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39. During May through August 2011, t ~ i : dec!ine in Akers' productivity was
drastic despite there being no apparent reason for his deficiencies.
40. This decline in Akers' already poor performance prompted his supervisor
to track and document delinquent status deliverables and email response times.
41. Akers continued to deceive his supervisor and, when asked about what
was distracting him from his responsibilities, stated that he just was not checking his
email or responding.
42. Akers was reminded that his job responsibilities required that he regularly
check his emails and respond to them promptly and he was specifically directed to do
so.
43. On August 29, 2011, Akers' supervisor contacted him about another
simple task he failed to complete for the School District.
44. Akers claimed that he was sidetracked from the assignment because of
problems with the school calendar.
45. Akers' supervisor, who was unaware of any such problems, checked the
server for activity on the calendar and saw that it had not been modified or accessed by
Akers' as he had claimed.
46. Based on Akers' blatant misrepresentation, Akers' supervisor reported her
suspicions to the Director of Information Systems that Akers was engaging in other
activities during work hours.
47. This report caused the School District to incur the burden and expense of
monitoring Akers' network activity.
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8 ~ -On September 8, 2011, IT Security discovered suspicious web tr<-1ffic - -
activity. Specifically, Akers repeatedly transferred data from one of his work computers
to a server outside the School District's network.
49. The next day, on September 9, 2011, an article was published announcing
the launch of theteachersofphilly application, which was the name of the web site to
which Akers' had been transferring data from his work computers.
50. To seek to prevent the destruction of any data by Akers, the School
District incurred the burden and expense of seizing Akers' work equipment and
performing a forensic examination of its contents.
51. The School District did not discover the non-School-District web projects,
Comic Wars, or Comic Babies until it conducted the forensic examination.
52. Upon discovery of what appeared to be unauthorized and illegal conduct
by Akers, including theft of paid School District time, Akers was suspended with pay on
December 9, 2011.
53. In a philly.com article dated December 13, 2011, Akers stated that he had
been asked to create theteachersofphilly iPhone application as part of his official School
District duties and that he did so in the course and scope of his employment on School
District time. The December 13, 2011 article is attached as Exhibit D.
54. Akers has also represented to the School District that this project was
conceived and developed at the instruction and direction of School District
administrators and the forensic evidence shows that he completed it during work hours
for which he was paid by the School District.
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55. Akers also reported tcdhe Sshool District that he allowed individuals who
were not employed by or affiliated with the School District to access his School District
computers and the School District's network to develop theteachersofphilly application
and that he provided them with his username and password, in violation of the Code of
Ethics and Acceptable Use Policy.
56. As of December 13, 2011, it was reported that the application had over
70,000 free and paid downloads.
57. Despite Akers' representation that theteachersofphilly was a School
District project and, therefore, is School District property, Akers and/or Defendant
gameMian improperly retained the proceeds from those 70,000 reported downloads,
and from any later unreported downloads.
58. Akers never sought nor received permission from the School District to
use or develop for his own personal profit or for the profit of any Defendant any
application, work product or work for hire he created at the School District using School
District equipment and on time paid for by the School District.
59. On or around March 15, 2012 and effective February 11, 2012, Akers'
employment with the School District was terminated.
60. At the time of his termination, the School District was paying Akers in
consideration for his employment as Webmaster with the School District, including his
explicit agreement to abide by its Code of Ethics, an annual salary of Sixty-One
Thousand Eight Hundred Twenty Dollars and Twenty-Six Cents ($61,820.26).
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61. In or around May 2012, Akers sent an email under tr:,.: name Zamir
Summers from the appzhao.com domain soliciting business from the School District and
purporting to create an Appzhao page for the Philadelphia School District.
62. The web page unlawfully incorporated the School District's trademark
without the School District's permission and was advertised as "The Official School
District of Philadelphia Appzhao page."
63. Akers' solicitation of business with the School District within months of his
termination violated the School District's Code of Ethics.
64. In a Technically Philly article dated July 27, 2012, Akers reported that the
Appzhao web site idea and platform was created in December 2011 in the course and
scope of Akers' employment with the School District based on discussions about the
use of iPads in the classrooms and methods by which teachers could communicate to
students which applications they needed.
65. Despite being an agent and fiduciary of the School District at the time the
idea was created, Akers failed to disclose the idea to the School District so that the
School District could develop it for profit.
66. Akers never sought nor was he given permission to develop for his own
personal profit or for the profit of any Defendant any work for hire, including ideas,
generated or created during his employment at the School District.
67. Neither Akers nor Defendant Appzhao, Inc. has paid the School District
any profits from the launch of the appzhao.com web site nor any licensing fees for the
use of the work-for-hire idea generated in the course and scope of Akers' employment
during which time he was paid by the School District.
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68. Neither nor Defendant Appzhao has paid the School District for the
unlawful use of the School District's trademark and false advertisement of the School
District's "official Appzhao page."
69. Upon information and belief, Defendants Akers and Appzhao have
solicited and obtained additional business for the Appzhao web site by its unlawful and
misleading use of the School District's trademark.
70. Akers' solicitation of business from the School District using a false
identity prompted the School District to expend significant time and resources to
conduct a forensic examination of the aapzhao.com web site.
71. The School District discovered during its investigation that another site
owned and operated by Akers, www.lusport.com, was linked to the Appzhao web site
and contained 319 School District files that Akers had taken from his work computers
and other School District devices and published on the internet without the School
District's permission or authorization. The 319 files included confidential School District
web files, designs, mock ups and interfaces, source code, internal email
communications, data, copyrighted images and photographs, video recordings, and at
least one proprietary mapping application that had not been publicly released by the
School District.
72. The files had been obtained by Akers when he was a School District
employee and stored to a personal storage device.
73. The web site www.lusport.com was registered under the name Rand Lu of
gameMian.
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7 4. Upon information and belief, Rand L: i : ~ 8 p5eudonym used by Defendant
Akers as Akers' photograph was featured on a profile page for a Princeton New
Jersey's Real Estate Investment Club for Rand Lu.
75. Rand Lu was also the individual quoted in a newspaper article as a game
developer of "The Teachers of Philly" application and the individual to whom ''The
Teachers of Philly" web site was registered using Akers' personal credit card.
76. Upon information and belief Lu Kaizhi is also Defendant Akers.
77. Akers' photograph appeared on an old port to the www.lusport.com web
site and a connected web site, www.lukaizhi.com. The home pages of those sites were
titled respectively "Lu Kaizhi's Online Portfolio" and "Lu Kaizhi's Online Site."
Notifications on the sites or links to the sites state "This site was designed and created
by Christopher Akers All Rights Reserved" and "Copyright Christopher R. Akers 2011.
78. The www.lukaizhi web site also contained a resume with the same
educational and employment background as Akers and email address of
cakers5559@yahoo.com.
79. In addition, Akers used Lu Kaizhi as his username on his work computers.
COUNT I
False Designation of Origin Under the Lanham Act - 15 U.S.C. 1125(a)
Against Defendants Akers, gameMian and Appzhao
80. The School District re-alleges and incorporates by reference the
allegations contained in paragraphs 1 through 79 of this Complaint.
81. The School District has a distinct, valid and legally protectable mark
("School District Mark") that is well-recognized by the public, closely associated with the
School District and exclusively identifies the School District's business and services.
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82 . .. _ The-.School District created and owns the School District Mark. ,._ ~ - ---,
83. Defendants Akers, gameMian and Appzhao willfully violated the School
District's property rights in a deliberate effort to trade on the School District's official
status and goodwill.
84. Defendants possessed, used, distributed, marketed, promoted, and
incorporated the School District Mark within their applications and web sites in interstate
commerce through the world wide web without permission or authorization.
85. Defendants used the School District Mark for a commercial purpose and
publicly represented that Defendants' commercial endeavors were initiated, approved,
and/or sponsored by the School District.
86. As a result of Defendants' unauthorized use of a mark that is identical to
and/or confusingly similar to the School District Mark, as well as Defendants' public
statements, the public is likely to believe that Defendants' goods and services are
associated, affiliated, connected, approved, authorized or sponsored by the School
District.
87. Defendants' unauthorized use of the School District Mark falsely
represents Defendants' web site and products as emanating from or being authorized
by the School District and places beyond the School District's control the quality and
content of products bearing the School District Mark and overall message associated
with the School District Mark.
88. By using the School District Mark, Defendants are likely to cause
confusion, mistake, or deception as to the origin, sponsorship or approval of the web
sites and applications incorporating the School District Mark.
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89. Defendants' infringemenLof-t!:le.School District's Mark is willful, intended
to reap the benefit of the goodwill and official status of the School District and violates
the Lanham Act.
90. As a result of Defendants' wrongful conduct, the School District has
suffered and will continue to suffer, substantial damages. Under 15 U.S.C. 1117(a),
the School District is entitled to recover damages, which include any and all profits
Defendants have made as a result of their wrongful conduct.
91. The School District is also entitled to injunctive relief pursuant to 15 U.S.C.
1116(a). The School District has no adequate remedy at law for Defendants' wrongful
conduct because, among other things, (a) the School District's trademark is unique and
valuable property which has no readily determinable market value, (b) Defendants'
infringement constitutes harm to the School District such that the School District could
not be made whole by any monetary award, (c) if Defendants' wrongful conduct is
allowed to continue or resume, the public is likely to become further confused, mistaken
or deceived as to the source, origin or authenticity of the infringing materials, and (d)
Defendants' wrongful conduct, and the resulting damage to the School District, is
continuing.
92. The School District is also entitled to recover its attorneys' fees and costs
of suit pursuant to 15 U.S.C. 1117.
COUNT II
Trademark Dilution Under the Lanham Act - 15 U.S.C. 1125(c)
Against Defendants Akers, gameMian and Appzhao
93. The School District re-alleges and incorporates by reference the
allegations contained in paragraphs 1 through 79 of this Complaint.
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___ 94. The School District has a distinct, valid and legally p.mtectable mark
("School District Mark") that is well-recognized by the public, closely associated with the
School District and exclusively identifies the School District's business and services.
95. The School District created and owns the School District Mark.
96. Defendants Akers, gameMian and Appzhao willfully violated the School
District's property rights in a deliberate effort to trade on the School District's official
status and goodwill.
97. Defendants possessed, used, distributed, marketed, promoted, and
incorporated the School District Mark within their applications and web sites in interstate
commerce through the world wide web without permission or authorization.
98. By using the School District Mark, Defendants are likely to cause dilution
by blurring and dilution by tarnishment.
99. Defendants' infringement of the School District's Mark is willful, intended
to reap the benefit of the goodwill and official status of the School District and violates
the Lanham Act.
100. The School District is also entitled to injunctive relief pursuant to 15 U.S. C.
1116(a). The School District has no adequate remedy at law for Defendants' wrongful
conduct because, among other things, (a) the School District's trademark is unique and
valuable property which has no readily determinable market value, (b) Defendants'
infringement constitutes harm to the School District such that the School District could
not be made whole by any monetary award, (c) if Defendants' wrongful conduct is
allowed to continue or resume, the School District's Mark will continue to be diluted,
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blurred and tarnished, ar;d (d) Defendants' wrongful conduct, and the resulting damage
to the School District, is continuing.
101. The School District is also entitled to recover its attorneys' fees and costs
of suit pursuant to 15 U.S.C. 1117.
COUNT Ill
Common Law Trademark Infringement
Against Defendants Akers, gameMian and Appzhao
102. The School District re-alleges and incorporates by reference the
allegations contained in paragraphs 1 through 79 of this Complaint.
103. The School District has common law rights in its trademark based on
continuous use of the trademark in the City of Philadelphia in connection with its official
business and any products, services and merchandise it sells.
104. Defendants' unauthorized use of the School District's trademark to
promote, advertise, market and/or sell their goods is likely to cause confusion, mistake
and deception of the public as to the identity and origin of Defendants' goods, or as to a
connection or affiliation with the School District, or permission from the School District,
that does not exist, causing irreparable harm to the School District for which there is no
adequate remedy at law. Defendants' conduct thus constitutes common law trademark
infringement.
105. Despite their actual and constructive knowledge of the School District's
ownership and prior use of its trademark, Defendants have continued to use the
trademark without the School District's authorization or consent. Defendants' actions
are deliberate and willful and have been done with the intention of trading up on the
valuable goodwill built up by the School District in its official trademark.
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106. The School District has sustained injur /;.:darn-age and loss based on
Defendants' actions.
COUNT rv
Breach of Contract Against Defendant Akers
107. The School District re-alleges and incorporates by reference the
allegations contained in paragraphs 1 through 79 of this Complaint.
108. The Code of Ethics and Acceptable Use Policy provided essential terms of
an agreement for employment between Akers and the School District through which
Akers received substantial consideration.
109. As set forth above, Akers breached the terms of that agreement on
numerous occasions through his unlawful possession and use of copyrighted material
on School District issued devices, his theft and conversion of School District intellectual
property, his fraudulent misrepresentations, his theft of School District time, resources
and property for his personal gain and his attempts to contract with the School District
within months of his termination.
110. As a direct and proximate result of the foregoing acts and conduct, the
School District has suffered loss of its intellectual property, loss of salary paid to Akers
for work he performed for his own personal gain and businesses, diversion of the profits
earned through the School District's works for hire created by Akers in the course and
scope of his employment and loss of resources expended to uncover and remedy
Akers' numerous instances of fraud.
COUNTV
Conversion Against Defendants Akers,
Kaizhi Designs, gameMian and Appzhao
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111 .. :: The-School District re-alleges and incorporates by reference the ~ ____ _
allegations contained in paragraphs 1 through 79 of this Complaint.
112. Defendants Akers, Kaizhi Designs, gameMian and Appzhao intentionally
or wrongfully exercised ownership, control or dominion over the School District's
property to which they were not entitled to use or possess.
113. Defendants' willful interference and conversion of School District property
have been continuous and ongoing.
114. Upon information and belief, Defendants have exploited, and continue to
exploit, the School District's property for commercial use and profits, which have been
improperly withheld from the School District.
115. Defendants have fraudulently attempted to conceal, and, upon information
and belief, continue to conceal, their possession, control and dominion over School
District property.
116. As a direct and proximate result of the foregoing acts and conduct, the
School District has been deprived of use, possession and control of its property and has
suffered loss of salary paid to Akers for work he performed for his own personal gain
and businesses, diversion of the profits earned through the School District's works for
hire created by Akers in the course and scope of his employment and loss of resources
expended to uncover Defendants' conversion of School District property and has been
damaged in an amount to be determined at trial.
117. The aforementioned acts of Defendants were wilful, wanton, malicious,
and oppressive, were undertaken with the intent to defraud, and justify the awarding of
exemplary and punitive damages in an amount to be determined at trial.
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GDJJNTVI
Misappropriation of Ideas Against Defendants Akers and Appzhao
118. The School District re-alleges and incorporates by reference the
allegations contained in paragraphs 1 through 79 of this Complaint.
119. Defendant Akers, during the course and scope of his employment with the
School District, created works for hire, which included ideas that were novel and
concrete.
120. The School District made a substantial investment of time, effort and
money into creating the works for hire as it paid a substantial salary to Akers who
created and developed these works for hire during his employment with the School
District during work hours and using School District resources, including School District
hardware, equipment, software, and its private network.
121. In addition, the School District reassigned Akers' other work tasks to other
employees, which it also paid substantial salaries, in furtherance of the development of
the ideas Akers generated for hire.
122. Defendants Akers and Appzhao misappropriated the ideas Akers created
for hire for the School District.
123. Defendants appropriated the ideas, which were created and developed at
the cost and expense of the School District, at little or no cost to Defendants.
124. As a direct and proximate result of the foregoing acts and conduct, the
School District has suffered loss of control of its intellectual property, including works
and ideas made for hire, loss of salary paid to Akers for work he-= pF:!iormed for his own
personal gain and businesses, diversion of the profits earned through the School
District's works for hire created by Akers in the course and scope of his employment
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_':of-1,nd less of resources expended to uncover Defendants' School
District property.
COUNT VII
Breach of Fiduciary Duty Against Defendant Akers
125. The School District repeats and re-alleges the foregoing paragraphs of
this Complaint and incorporates them herein by reference.
126. Akers by virtue of his paid employment with the School District was a
fiduciary with respect to matters within the scope of his employment.
127. As Webmaster with access to the School District's intellectual property,
trademarks, copyrighted materials, confidential data, processes and creations, Akers
held a position of trust.
128. Akers was, therefore, subject to a duty not to compete and not to use
School District property and confidential information for personal gain.
129. Akers breached his fiduciary duty when he engaged in self-dealing by
using school district resources, equipment, time and intellectual property to distribute on
the world wide web and through applications for commercial exploitation and personal
gain.
130. Akers further breached his fiduciary duty when he improperly withheld all
profits earned from his theft, conversion and misappropriation of School District
property.
131. As a direct and proximate result of the foregoing acts and conduct, the
School District har :,Gffc:::d loss of control of its intellectual property, including works
and ideas made for hire, loss of salary paid to Akers for work he performed for his own
personal gain and businesses, diversion of the profits earned through the School
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District's works for hire by Akers jn the course and scope of his employment
and loss of resources expended to uncover Defendants' breach of his duties as well as
his conversion and misappropriation of School District property.
COUNT VIII
Fraud Against Defendant Akers
132. The School District re-alleges and incorporates by reference the
allegations contained in paragraphs 1 through 79 of this Complaint.
133. Defendant Akers made a false statement of a material fact in telling the
School District that he was spending his paid time and accruing additional
compensation time by working on projects for the benefit of the School District when he
was developing game application, including an application that unlawfully incorporated
copyrighted works of a third party.
134. Akers knew that that his statements and representations were untrue.
135. Akers intended to deceive the School District.
136. The District continued to pay Akers for working, continued to employ and
continued to give him access to its proprietary and confidential data.
137. Akers also fraudulently represented that he had the endorsement of the
School District by the fraudulent creation of an "official" School District web site and by
using confidential emails to fraudulently suggest that his work performance at the
School District was satisfactory when it was largely subpar.
138. As a direct and proximate result of Akers' fraud, the School District has
suffered loss of control of its intellectual in;::;.Jding works and ideas made for
hire, loss of salary paid to Akers for work he performed for his own personal gain and
businesses, diversion of the profits earned through the School District's works for hire
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created by Akers in the course and scope of his employm.ent,- Joss of resources
expended to uncover Defendants' fraud and dilution of its trademark.
COUNT IX
Violation of the Computer Fraud and Abuse Act (18 U.S.C. 1030)
Against Defendant Akers
139. The School District re-alleges and incorporates by reference the
allegations contained in paragraphs 1 through 79 of this Complaint.
140_ Defendant Akers: (a) knowingly and intentionally accessed the School
District's protected computers in excess of any authorization and thereby obtained,
stored, accessed, collected, and transmitted data and intellectual property of the School
District outside of the School District's private network for use in transactions involving
interstate communication in violation of 18 U.S.C. 1030(a)(2)(C); (b) knowingly and
with an intent to defraud accessed the protected computers in excess of any
authorization and obtained information, which Akers used to further the fraud and obtain
something of value in violation of 18 U.S.C. 1030(a)(4); (c) knowingly caused the
transmission of a program, information, data, code and commands, and as a result of
such conduct intentionally caused damage in excess of his authorization to the
protected computers in violation of 18 U .S.C. 1030(a)(5)(A); and (d) intentionally
accessed the protected computers in excess of his authorization, and as a result of
such conduct caused damage and loss in violation of 18 U.S.C. 1030(a)(5)C).
141. Akers further provided access and permitted others to store, access,
collect, and transmit data and intellectual property of the School District outside of the
School District's private network in violation of 18 U.S.C. 1030(a)(2)(C).
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142. =Akers-conduct was intentional, willful and malicious and impaired th1 ! ----. - .
integrity of the School District's network, information and data.
143. As a result of this unauthorized use, access and takings, Akers' conduct
has caused a loss to the School District during a one-year period aggregating at least
Five Thousand Dollars ($5000).
144. The School District has suffered damages resulting from Akers conduct.
145. The School District seeks compensatory and punitive damages under 18
U.S.C. 1030(g) in an amount to be proven at trial.
146. As a direct result of Akers' actions, the School District has suffered and
continues to suffer irreparable harm for which the School District has no adequate
remedy at law, and which will continue unless Aker's actions are enjoined.
COUNT X
Unjust Enrichment Against Defendant Akers,
Kaizhi Designs, gameMian and Appzhao
147. The School District re-alleges and incorporates by reference the
allegations contained in paragraphs 1 through 79 of this Complaint.
148. The acts of Defendants complained of in this Complaint constitute unjust
enrichment of the Defendants at the School District's expense in violation of common
law.
149. Defendants accessed, stole, used, marketed, and traded upon the School
District's intellectual property, including works made for hire, without authorization or
license.
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150. Defendants profited unjustl;Amm.their unauthorized and unlicensed use of
the School District's intellectual property, as well as the computers, private network, and
employee resources of the School District.
151. Defendants had an appreciation and knowledge of the benefit they derived
from their unauthorized and unlicensed use of the School District's property.
152. Retention by Defendants of the profits they derived from their
unauthorized and unlicensed use of the School District's intellectual property and
resources would be inequitable.
153. Defendants' unauthorized and unlicensed use of the School District's
intellectual property and resources has damaged the School District in an amount to be
proven at trial, and Defendants should disgorge their ill-gotten profits.
154. As a direct result of Defendants' actions, the School District has suffered
and continues to suffer irreparable harm for which the School District has no adequate
remedy at law, and which will continue unless Defendants' actions are enjoined.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff the School District prays that the Court:
1. Enter judgment in favor of the School District and against the Defendants.
2. Declare that Defendants conduct has been willful and that Defendants
have acted with fraud, malice and oppression.
3. Enter a preliminary and permanent injunction enjoining Defendants and
their officers, directors, principals, agents, servants, employees, successors and
assigns, and all persons and entities in active concert or participating with them, from
engaging in any of the activity complained of herein or from causing any of the injury
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of herein and from assisting, aiding or abetting any other
business entity in engaging in or performing any of the activity complained of herein or
from causing any of the injury complained of herein.
4. Enter judgment awarding the School District actual damages from
Defendants adequate to compensate the School District for Defendants' activity
complained of herein and for any injury complained of herein, including but not limited to
interests and costs, in an amount to be proven at trial.
5. Order and accounting for the profits due and owing to the School District
and enter judgment disgorging Defendants' profits.
6. Enter judgment awarding enhanced, exemplary, and special damages in
a11 amount to be proven at trial.
7 Enter judgment awarding punitive damages
8. Enter judgment awarding attorneys' fees and costs, and
9. Order such other relief that the Court deems just and reasonable.
By:
28
AW GROUP, LLC T

JoeJj'. Tucker, Jr., Esquire
Bacardi L. Jackson, Esquire
1617 JFK Boulevard, Suite 1700
Philadelphia, PA 19103
(215) 875-0609
Attorneys for The School District of
Philadelphia
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