FILED: NEW YORK COUNTY CLERK 06/22/ :56 AM INDEX NO /2015 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/22/2015

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1 FILED: NEW YORK COUNTY CLERK 06/22/ :56 AM INDE NO /2015 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/22/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HARVEY KEITEL, -against- Plaintiff, E*TRADE FINANCIAL CORPORATION, Defendant. Index No.: SUMMONS Plaintiff designates New York County as the place of Trial The basis of venue is Defendant's principal office: 1271 Avenue of the Americas, 14th Floor New York, New York TO THE ABOVE-NAMED DEFENDANT(S): YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiffs attorneys within twenty (20) days a fter the service of this summons, exclusive of the day of service (or within thirty (30) days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded herein. Dated: New York, New York June 22, 2015 BUSHELL, SOVAK,pZERjSJjUtMi-fcfcF By: j/ Victor C. CRusKell CemO? 274 Madison Avenue, Suite 901 New York, New York (212) Attorneys for Plainti ffharvey Keitel To: E*Trade Financial Corporation 1271 Avenue of the Americas 14th Floor New York, NY

2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HARVEY KEITEL, -against- Plaintiff, E*TRADE FINANCIAL CORPORATION, Index No. COMPLAINT Defendant. Plaintiff HARVEY KEITEL ("Mr. Keitel"), by and through his attorneys, BUSHELL, SOVAK, OZER & GULMI LLP, as and for his Complaint against Defendant ETRADE FINANCIAL CORPORATION ("E*Trade"), alleges as follows: THE PARTIES 1. Mr. 2. Mr. Keitel is a natural person residing in New York, New York. Keitel is a well-known actor who has appeared in such movies as Taxi Driver. Reservoir Dogs, Pulp Fiction, The Piano, and most recently, The Grand Budapest Hotel. 3. Upon information and belief, E*Trade is incorporated under the laws of the state of Delaware and maintains its principal place of business in New York, New York. PRELIMINARY STATEMENT 4. In early 2014, E*Trade entered into negotiations with Mr. Keitel for Mr. Keitel to star in a series of three commercials for E*Trade. To secure the services of Mr. Keitel, E*Trade sent Mr. Keitel a " firm and binding offer." Mr. Keitel accepted E*Trade's offer, at which point a contract was formed. The contract required Mr. Keitel to participate in the three E*Trade commercials in exchange for the payment One Million Five Hundred Thousand Dollars ($1,500,000). Subsequent to the contract being formed, E*Trade told Mr. Keitel that E*Trade,s ad campaign was " moving in a different direction " and that E*Trade did not intend to honor their

3 contract with Mr. Keitel. In terminating their contract, E*Trade offered Mr. Keitel a " kill fee" of One Hundred and Fi fty Thousand Dollars ($150,000), representing ten percent (10%) of the contract price. Mr. Keitel rejected the " kill fee" and demanded that E*Trade honor the contract as written. E*Trade refused to honor the contract, leaving Mr. Keitel with no choice but to commence the within litigation to protect and enforce his rights. THE BACKGROUND 5. Upon information and belief, in or about January 2014, E*Trade retained the advertising firm of the Ogilvy Group, Inc., d/b/a Ogilvy & Mather NY ( " Ogilvy") to develop a series of three television commercials for E*Trade. 6. Upon information and belief, Ogilvy in-tum retained Octagon First Call ("Octagon " ) to assist E*Trade in procuring the talent to star in the three television commercials for E*Trade. 7. Upon information and belief, at all times relevant herein, Ogilvy and Octagon were acting as agents on behalf of E*Trade. 8. On or about January 23, 2014, Octagon, through its employee, Maria Conti ("Ms. Conti") contacted Karen Sellars ("Ms. Sellars") of ICM Partners, Mr. Keitel's talent agency, inquiring as to whether the actor Christopher Walken would be interested in starring in three commercials for E*Trade. 9. A fter conferring with Christopher Walken, Ms. Sellars advised Ms. Conti that Mr. Walken could not commit to a three commercial project. 10. Ms. Sellars also told Ms. Conti that she may be able to get Mr. Keitel to star in the commercials for E*Trade. 11. The possibility of having Mr. Keitel star in the commercials was conveyed to

4 _ ETrade, whose Chairman was personally involved in the selection of the talent to star in the three television commercials. 12. On or about January 24, 2014, Ms. Conti sent Ms. Sellars a written offer for the services of Mr. Keitel to appear in the three television commercials for ETrade. 13. The written offer was sent via with a subject line that stated, "Harvey Keitel etrade " and attachments identified as, "Keitel_Ogilvy_eTrade_Non-Binding_Term Sheet.DOC; TYPE in the project. E_KEITEL.pdf." 14. Ms. Sellars discussed the offer briefly with Mr. Keitel, who expressed his interest 15. Shortly after sending the written offer to Ms. Sellars, Ms. Conti called Ms. Sellars and advised that ETrade was withdrawing the open offer to Mr. Keitel and wanted Ms. Sellars to contact Mr. Walken again regarding the commercials. 16. Pursuant to her call with Ms. Conti, Ms. Sellars contacted Mr. Walken, who again passed on the opportunity which Ms. Sellars, in turn, relayed to Ms. Conti. 17. After receiving the con firmation from Ms. Sellars that Mr. Walken was not interested, Ms. Conti told Ms. Sellars that ETrade wanted to proceed with retaining Mr. Keitel. 18. Ms. Conti also told Ms. Sellars that the ETrade commercial was scheduled to shoot in mid-february 2014 and, therefore, they were under a tight deadline and needed to move forward quickly. 19. Ms. Sellars replied that, in light of the original pulled offer, ETrade had to make the offer final and binding before she would communicate it to Mr. Keitel. 20. Ms. Conti agreed and on or about January 27, 2014, called Ms. Sellars and told her she had ETrade's final approval.

5 21. Later that same day, Ms. Conti ed the re-submitted offer which now contained a subject line that stated, "Harvey Keitel Firm Offer" (emphasis added). 22. The also identified the attachment as, "Keitel Ogilvy etrade Term Sheet.DOC" whereas in the original offer it identified the attachments as, " Keitel etrade _Ogilvy Non-Binding Term Sheet.DOC; E_KEITEL.pdf." TYPE_ 23. The body of Ms. Conti's also stated that the offer was "firm and binding". 24. The offer contained all the material terms needed to consummate the transaction between E*Trade and Mr. Keitel. 25. The offer set forth the amount of Mr. Keitel's compensation for his services: One Million Five Hundred Thousand Dollars ($1,500,000). 26. Ms. Sellars communicated E*Trade's firm and binding offer to Mr. Keitel. 27. Mr. Keitel agreed to and accepted E*Trade's firm and binding offer and instructed Ms. Sellars to convey his acceptance to E*Trade. 28. On or about January 28, 2014, Ms. Sellars communicated to Ms. Conti, Mr. Keitel's acceptance of E*Trade's firm and binding offer. 29. Upon Ms. Sellar's communication to Ms. Conti of Mr. Keitel's acceptance, an enforceable and binding contract was created between Mr. Keitel and E*Trade. 30. Later that same day, Ms. Sellars confirmed in writing that Mr. Keitel agreed to do the three commercials for E*Trade. 31. On or about January 29, 2014, Ms. Conti ed Ms. Sellars, stating the ETrade campaign is moving in a different direction. 32. Upon receiving Ms. Conti's January 29, , Ms. Sellars immediately contacted Ms. Conti.

6 33. Understanding that a binding contract existed between E*Trade and Mr. Keitel, Ms. Conti, on behalf of E*Trade, offered Mr. Keitel a "kill fee" of $150,000 to terminate the contract, representing ten percent of the contract price of $1.5 million. 34. By offering a "kill fee," E*Trade acknowledged and admitted that it had an existing, binding and enforceable contract with Mr. Keitel. MR. KEITEL'S CAUSE OF ACTION FOR BREACH OF CONTRACT AGAINST E*TRADE 35. Mr. Keitel repeats and realleges each of the allegations set forth above in paragraphs 1 through 34 as if set forth more fully herein. 36. On or about January 27, 2014, E*Trade, through its agent, made a firm and binding offer to Mr. Keitel. 37. The firm and binding offer contained all of the material terms necessary to create a binding and enforceable contract, including, among other things, that Mr. Keitel would be compensated in the amount of $ 1.5 million for his services under the contract. 38. On or about January 28, 2014, Mr. Keitel accepted the terms of E*Trade's firm and binding offer and such acceptance was communicated to E*Trade both orally and in writing. 39. Upon Mr. Keitel's acceptance of ETrade's firm and binding offer, a contract was formed between Mr. Keitel and E*Trade. 40. Without any justi fication or excuse, E*Trade refused to proceed forward with the contract entered into with Mr. Keitel. 41. At all times relevant to this dispute, Mr. Keitel was ready, willing and able to proceed with the services he agreed to perform under the contract. 42. By refusing to proceed with the contract, E*Trade breached its contract with Mr. Keitel.

7 43. E*Trade,s breach of the contract has caused Mr. Keitel damages in the amount of not less than One Million Five Hundred Thousand Dollars ($1,500,000). 44. In addition to the damages of not less than One Million Five Hundred Thousand Dollars ($1,500,000), Mr. Keitel is also entitled to statutory interest on the amount of his damages, running from the date that E*Trade breached the contract. WHEREFORE, Keitel demands judgment against E*Trade as follows: a. Damages for breach of contract in an amount not less than One Million Five Hundred Thousand Dollars ($1,500,000); b. Statutory interest, including, without limitation, pre-judgment interest running from the date of the breach; c. Mr. Keitel's costs and disbursements in this action; and d. Such other and further relief as the court deems just and necessary. DATED: New York, New York June 22, 2015 BUSHELL, SOVAK, OZER & GULMI LLP By: Victor C. Bushell Cem Ozer 274 Madison Avenue, Suite 901 New York, NY Attorneys for Plaintiff Harvey Keitel TO: E*Trade Financial Corporation 1271 Ave of the Americas 14th Floor New York, NY 10020