CONSENT FINAL JUDGMENT AND STIPULATED PERMANENT INJUNCTION. This Consent Final Judgment and Stipulated Permanent Injunction was entered upon

Transcription

1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 2015 CA002751XXXXMB OFFICE OF THE ATTORNEY GENERAL DEPARTMENT OF LEGAL AFFAIRS, STATE OF FLORIDA Plaintiff, v. ASAP TECH HELP, LLC, and MICHAEL MCARDLE, an Individual, and DUSTIN PILLONA TO, an Individual and Defendants, ASAP TOTAL HOME, LLC, and KESILS MARKETING, LLC, and ASAP HOME ENTERTAINMENT, LLC Relief Defendants ~/ CONSENT FINAL JUDGMENT AND STIPULATED PERMANENT INJUNCTION This Consent Final Judgment and Stipulated Permanent Injunction was entered upon agreement between Plaintiff, The Office of the Attorney General, Department of Legal Affairs, S!ate of Florida (The "Department"), and Defendant~, ASAP Tech Help, LLC ("ASAP"), Michael McArdle, an individual, and Dustin Pillonato, an individual (collectively referred to as the "Parties"). JURISDICTION AND VENUE The Parties hereby agr:ee and stipulate that this Court has jurisdiction over the parties and the subject matter pursuant to the provisions of the Florida Deceptive and Unfair Trade Practices Act, Chapter 501, Part II, Florida Statutes, and that venue is proper in this Court in that the actions at issue took place in or affected more than one judicial circuit in the State of Florida. The Parties, having stipulated that this Court has jurisdiction to enter a final judgment and D? 111'1.

2 permanent injunction in this matter, agree to the entry of the Consent Final Judgment and Stipulated Permanent Injunction and to the findings of fact set forth below to resolve all matters in dispute in this action between them. The Court, having reviewed the file and necessary papers, makes the following findings: FINDINGS OF FACT I. The Parties A. The Office of the Attorney General, Department of Legal Affairs, State of Florida (the "Department" or "Plaintiff') is an agency of the State of Florida and the enforcing authority under the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), Florida Statutes Section et seq. B. ASAP Tech Help, LLC ("ASAP"), is a Florida limited liability company organized under the laws of Florida on or about September 20, 20 13, and maintains a principal place of business registered as 430 S. Congress A venue, Suite 1 D, Delray Beach, Florida Since its inception, ASAP has marketed, advet1ised, and sold products and services to consumers relating to technical support services for personal computers. C. Michael McArdle is an individual over the age of 18 and is the Manager and registered agent of ASAP. Since ASAP's inception on September 20, 2013, Michael McArdle has actively controlled and directed the business and operations of ASAP. D. Dustin Pillonato is an individual over the age of 18 and is a Manager of ASAP. Since ASAP's inception on September 20, 2013, Dustin Pillonato has actively controlled and directed the business and operations of ASAP. II. Background 2 f>'p In itials tyt;vj

3 E. The Department initiated an investigation into allegations that ASAP engaged in acts or practices in the State of Florida and elsewhere that were misleading, unfair, deceptive or unconscionable in the marketing, advertising, and performance of providing technological support services and software products. The allegations include: engaging in deceptive advertising to lure consumers under false pretenses to contact ASAP through misleading pop-up advertisements directing consumers to contact a toll-free telephone number; engaging consumers to allow ASAP to gain remote access to consumers' personal computers in order to conduct a misleading diagnosis of computer and software issues; convincing consumers that the diagnostic revealed damage and/or malware on consumers' personal computers, when it did not; and persuading consumers to purchase unnecessary and costly software support services and products to remedy non-existent computer issues. F. The alleged unfair and deceptive acts, if proven at trial, would violate the Florida Deceptive and Unfair Trade Practices Act Section et seq as well as, potentially other state or federal regulations. G. In lieu of litigation and trial, and without expressly admitting any of the allegations of the Complaint, the parties stipulate to the entry of this consent final judgment and permanent injunction. ASAP, Michael McArdle, and Dustin Pillonato waive any and all rights and defenses that might preclude entry and the full force and effect of this consent final judgment and permanent injunction. WHEREFORE, based upon the foregoing factual findings, it is hereby ORDERED AND ADJUDGED: 3 f9 da

4 SCOPE OF CONSENT FINAL JUDGMENT AND STIPULATED PERMANENT INJUNCTION 1. Final Judgment is hereby entered in favor of the Office of the Attorney General, Department of Legal Affairs, State of Florida (the "Department"), 110 SE 6 1 h Street, 1oth Floor, Fort Lauderdale, Florida 33301, and against ASAP Tech Help, LLC, at 430 S. Congress Avenue, Suite ld, Delray Beach, Florida 33445, Michael McArdle, at 269 NE 13th Street, Delray Beach, Florida 33444, and Dustin Pillonato, at th Avenue Nmih, Lake Worth, Florida The court finds that the purpose of FDUTPA is to "protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce." Section (2). To that end, "reasonable restrictions upon the future activities of any defendant to impede her or him [sic] from engaging in or establishing the same type of endeavor" are permitted by the Act, and courts may "order any defendant to divest herself or himself of any interest in any enterprise." Section (3). Prohibiting business activities is constitutional when the limitation is rationally related to the State's objective of preventing deceptive practices. Fraternal Order of Police v. Dept. of State, 392 So. 2d 1296, 1302 (Fla. 1980) (upholding regulations in the Law Enforcement Funds Act even though they were not "the best possible means to eradicate the evils perceived" because they were not "wholly unrelated" to the legislature's purpose). In such cases, a permanent injunction may be entered by the Court. The parties have agreed to the entry ofthe Permanent Injunction. I. Injunctive Terms 4 DP t11fr7

5 3. The Court hereby permanently enjoins ASAP, Michael McArdle, Dustin Pillonato, as well as their officers, agents, servants, employees, and those persons in active concert or participation with them who receive actual notice of this Order, whether acting directly or indirectly, from the following: a. Any acts or practices that violate the Florida Deceptive and Unfair Trade Practices Act, Chapter 50 I. Part II, Florida Statutes; as alleged in the complaint, including without limitation: 1. internet advertising or marketing meant to direct consumer traffic to any website, webpage. or secondary advertisement, related to any technical and/or software support entity where ASAP, Michael McArdle, or Dustin Pillonato conduct business; 11. engaging in any business that markets or sells computer security or performance software or support services or products; 111. receiving payment or any other benefit through any partnership, alliance, joint venture, or agreement with any business that offers consumers computer security or performance/technical support services and/or software products which engages m any of the deceptive acts or practices set forth in the complaint; IV. using any false or misleading statement to induce any person to pay for goods or services; v. From the date of this Judgment forward, Defendants are prohibited from selling, renting, leasing, transferring, using, disclosing, or 5 up ;Jt(tt}

6 intentionally obtaining any pecuniary benefit from the priyate (i.e. not public) consumer information, including name, address, telephone number, address, social security number, credit card number, bank account information, or other identifying information of any person, that ASAP. Michael McArdle, or Dustin Pillonato obtained prior to the entry of this Judgment in connection with any activity that pertains to the subject matter of the Attorney General's investigation v1. failing to disclose m inbound telephone calls from consumers, promptly and in a clear and conspicuous manner, the nature of the goods or services and/or any other fact material to consumers concerning any good or service. II. Restitution and Fees 4. The court finds that FDUTP A authorizes reimbursement to consumers who have been damaged by deceptive trade practices (3), Fla. Stat. All consumers who paid money in response to a deceptive trade practice are entitled to their money back, and there is no need for an individualized inquiry into how each consumer reacted to the practice. F. T. C. v. Wilcox, 926 F. Supp. 1091, (S.D. Fla. 1995); F. T. C. v. People 's Credit First, No. 8:03-CV T, 2005 WL (M.D. Fla. Dec ). It is understood that other persons or parties may have access to this information. The prohibition in th is provision is limited strictly to actions undertaken specifically by Defendants, after the date of the entry of th is final judgment. 6 o? rt/1

7 5. The Court further finds that while restitution serves the purpose of restoring an injured person to the financial position held before a defendant received an unlawful benefit, with a civil penalty "the Jaw exacts payment by way of punishment for doing some act which is prohibited..." Sun Coast Intern. Inc. v. Dept. of Business Regulation, 596 So. 2d 1118, 1121 (Fla DCA 1992) (internal citations omitted). Anyone who has used a trade practice found to be unlawful under the Act is liable for a civil penalty of up to $10, per violation , Fla. Stat. Each instance in which a deceptive representation is disseminated constitutes a violation. US. v. Reader's Digest Ass 'n, Inc., 662 F. 2d 955, 966 (3d Cir ). 6. Judgment, which shall be suspended as set forth below, in the amount of Seven Million Seven Hundred Sixty Thousand and Three Hundred and One Dollars ($7,760,301.00) is entered in favor of Plaintiffs against Defendants, (for which let execution shall issue forthwith if the suspension of the judgment set forth herein is lifted), apportioned as follows: a. Defendants shall be jointly and severally liable for Four Million Dollars Seven Hundred and Sixty Thousand and Three Hundred and One dollars ($4,760,301.00) in consumer restitution. 1. Defendants are ordered to pay One Hundred Thousand Dollars ($1 00,000.00), payment being made by wire transfer, ce1tified funds or cashier's check, payable to the Department of Legal Affairs Escrow Fund as set forth in subsection (ii) infra. Payment shall be sent to Michelle Pardoll, Assistant Attorney General, Office of the Attorney General, Consumer Protection Division, 110 SE 6 11 Street, Floor, Fort Lauderdale, Florida DP ;V/;17 In itials

8 u. Defendants shall pay Nine Thousand Eight Hundred and 00/100 Dollars ($9,800.00) simultaneously with Defendant's provision of the partially executed Judgment, and the remainder shall paid in equal monthly installments of Eight Thousand Two Hundred and 00/100 Dollars ($8,200.00) over a period of 11 months, the first payment beginning the first day of the month following the Court' s execution of this Judgment. Upon receipt, each check shall be deposited into the Department of Legal Affairs Escrow Fund, in accordance with Section (1), Florida Statutes for distribution to consumers according to the sole business judgment of the Department. In the event actual restitution for future complainants exceeds the Restitution Amount, then the Restitution Amount will be distributed pro-rata to the complainants determined by the Department to be eligible for restitution. In no event shall any individual consumer receive more than the amount they are actually owed. If any restitution monies remain after the distribution of the Restitution Amount, the Department will deposit the remaining monies into the Department of Legal Affairs Revolving Trust Fund and it shall be used to defray the costs of restitution distribution and any attorneys' fees and costs incurred in this matter. b. In this case, the Department has also alleged that more than 300 transactions of unfair or deceptive conduct occurred. Given the nature of the violations and the consumer harm, the appropriate penalty sought and agreed to by the parties could be $10, per violation, for a total penalty of Three Million Dollars ($3,000,000.00). The Defendants have agreed to the penalty set forth in this suspended Judgment and ifthe 8 12? ;t]~

9 suspension of the Judgment is lifted. the Defendants agree and the Court finds that the Defendants are and will be jointly and severally liable therefor. 7. As long as there is compliance with the payment obligations of the $100,000.00, as referenced in paragraph 6(a)(i), the remainder of the judgment shall remain suspended, subject to the provisions below. 8. The Plaintiffs agreement to the suspension of the monetary portion of the Judgment IS expressly premised upon the Defendants' compliance with the terms of this Judgment. The suspension of the monetary portion of this Judgment will be lifted if, upon motion by Plaintiff and hearing, the Court finds that Defendants violated the terms of this Judgment. 9. The Plaintiffs agreement to the suspension of part of the Judgment is also expressly premised upon the truthfulness, accuracy, and completeness of ASAP Tech. LLC, Michael McArdle, and Dustin Pillonato' s financial disclosures provided to the Attorney General' s Office during the week of May 27, The suspension of the Judgment will be lifted if, upon motion by Plaintiff, the Court finds that ASAP Tech Help, LLC, Michael McArdle, or Dustin Pillonato made any material misstatement or omission in these financial disclosures. 10. If the suspension of the Judgment is lifted, the judgment becomes immediately due in the amount specified in Paragraph 6 above, less any payment previously made pursuant to Paragraph 6(a)(i), plus interest computed from the date of entry of this Order. 11. The Department also reserves the right to seek attorneys' fees and costs incurred as a result of any future noncompliance by any party. 9 D?!11!1

10 12. Acceptance by the Office of the Attorney General of the terms of this Judgment shall be established by the signature of the Deputy Attorney General. The receipt by the Office of the Attorney General of any monies pursuant to the Judgment does not constitute acceptance by the Office of the Attorney General, and any monies received shall be returned to Defendants if this Settlement Agreement is not accepted and executed by the Deputy Attorney General. III. Additional Terms 13. ASAP, Michael McArdle, and Dustin Pillonato shall not destroy, mutilate, conceal, alter, or dispose of ASAP's books, records, contracts, financial records, consumer files and financial information, regardless of the manner in which it is stored, for a period of two (2) years from the date of this consent final judgment and stipulated permanent injunction. At any point during the two (2) year retention period set forth herein, Michael McArdle shall make any and all books and records available to the Department within three (3) business days upon request. 14. Michael McArdle and Dustin Pillonato shall each complete and sign a Credit Report Authorization and Release Form provided by the Office of the Attorney General and shall return the aforementioned Form with this signed and notarized consent final judgment and stipulated permanent injunction. This Credit Report Authorization shall be considered additional disclosure of information in furtherance of the disclosures provided. 15. In the event of failure to make payments in accordance herewith, and the lifting of the suspension of this Final Judgment, Michael McArdle and Dustin Pillonato shall each complete under oath Florida Rule of Civil Procedure Form (Fact Information Sheet), including all required attachments, and serve it on the Attorney General, within 30 days from the 10 D~ M/t1

11 date the Court enters an Order on this consent final judgment and stipulated permanent injunction, unless the judgment is satisfied. Failure to comply with this section shall constitute a violation of this consent final judgment and stipulated permanent injunction and may subject ASAP, Michael McArdle, and Dustin Pillonato to any and all penalties set forth herein. 16. Pursuant to Section , Florida Statutes, and the executed Waiver of Garnishment Exemption attached hereto as Exhibit A, Michael McArdle waives any claim of exemption from garnishment in any garnishment proceeding initiated to collect monies due under this consent final judgment and stipulated permanent injunction. 17. Pursuant to Section , Florida Statutes, and the executed Waiver of Garnishment Exemption attached hereto as Exhibit B, Dustin Pillonato waives any claim of exemption from garnishment in any garnishment proceeding initiated to collect monies due under this consent final judgment and stipulated permanent injunction. 18. ASAP, Michael McArdle, and Dustin Pillonato shall not affect any change in the form of doing business or the organizational identity of any of the existing business entities or create any new business entities as a method of avoiding the terms and conditions set forth in this consent final judgment and stipulated permanent injunction. 19. This Judgment is continuing in nature and shall be binding on any and all successors or assigns of ASAP, Michael McArdle, and Dustin Pillonato. 20. This Judgment is not a waiver of any private rights of any person or release of any private rights, causes of action, or remedies of any person against ASAP, Michael McArdle, Dustin Pillonato, or any other person or entity. Notwithstanding any other provision of this consent final judgment and stipulated permanent injunction, nothing herein shall be construed to 11 :W? ;flij In itials

12 impair, compromise or affect any right of any government agency other than the Office of the Attorney General for the State of Florida relating to the operative facts at issue. 21. Nothing herein shall affect ASAP, Michael McArdle, or Dustin Pillonato's (a) testimonial obligations, or (b) right to take legal or factual positions in defense of litigation or other legal proceedings to which the Department is not a party. 22. The Parties jointly participated in the negotiation of the terms articulated in this consent final judgment and stipulated permanent injunction. IV. Penalties For Noncompliance 23. Any failure to comply with the terms and conditions of this consent final judgment and stipulated permanent injunction is by statute prima facie evidence of a violation of Chapter 501, Part II, Florida Statutes, and upon failure to comply with the terms and conditions of this consent final judgment and permanent injunction, the suspension of the judgment will be lifted, and Defendants will be subject to attorneys' fees and costs in lifting the judgment and the collection thereof. In the event that a court of competent jurisdiction makes a determination that a violation of any provision of this consent final judgment and stipulated permanent injunction has occurred, then the violating Defendant(s) shall be jointly and severally liable for the full judgment, as well as any additional attorneys' fees and costs, and other relief as may be allowed by law. 24. This Court retains jurisdiction of this case to enforce the terms of this consent final judgment and stipulated permanent injunction and enter any further Orders as may be necessary to ensure compliance, including by contempt proceedings, civil and/or criminal. V. Waiver By Parties Of Hearing 12 j)y MAI1

13 25. This document is signed in anticipation of this consent final judgment and stipulated pennanent injunction being submitted to the Court for approval, without necessity of hearing, which is hereby waived by all parties. The signatures below indicate the parties' consent and agreement to this consent final judgment and stipulated petmanent injunction. 13 d)p tvtt

14 AGREED TO: By: ~,~ 211? Michael McArdle, Authorized agent of ASAP Tech Help, LLC (Date Signed) STATE OF FLORIDA ) COUNTY OF BROW ARD ) BEFORE ME, an officer duly authorized to take acknowledgments in the State of Florida, Michael McArdle as authorized agent of ASAP Tech Help, LLC. He acknowledged before me that he executed the foregoing instrument for the purposes therein stated on the a~'-' day of (Y\~, 20 I 5. Subscribed to before me this aqt--\ day of (Y\~1, I J ' (print, type, or stamp commissioned Notary Public) - ~... ~~~~'~(:~,,, <t-\_ BERNARD M CASSIDY f~m ~ ~ : ~ Notary Public - State of Florida ~ ~~"' ~~f My Comm. Expires Sep 2& 2016,,~.OF f\.o:,,, Com I, '''"""''' m sslon # EE Personally known / or Produced Identification (check one) Type of Identification Produced: _ By: ~~~~ ~ ~arshall Adams, Esq. (Date Signed) / lorida Bar No DP J1fri

15 By ;~ ~fc AnJie,lndividually -'YZV/z (Date Signed) STATE OF FLORIDA ) COUNTY OF BROW ARD ) BEFORE ME, an officer duly authorized to take acknowledgments in the State of Florida, Michael McArdle, personally appeared. He acktwwledged bx.~re me that he executed the foregoing instrument for the purposes therein stated on the ~"1h.day of \ l lc<.t.,, Subscribed to before me this ~jl"-1 day of «\""-' I ' (print, type, or stamp commissioned Notary Public), 20 It,,,uu.,,, ''':\~y Pu.'t,_ /~m~<i'\ BERNARD M CASSlDV ~ ; : i Notary Public - State ot Florid ~ -:.~ "~ M ~,,.,.,.f" r~>"' a,.. l Y Comm. Expires Sep , '' OF f\.0,,,,,,,.,,.,,, C ommlsslon * EE Personally known / or Produced Identification (check one) Type of Identification Produced: _ 15 D? IJ;t']

16 By:_~~~~ ~ ~~~ ~~~lz~s~l ~r~- Dustin Pillonato, Individually (Date Sign'ed) STATE OF FLORIDA ) COUNTY OF BROW ARD ) BEFORE ME, an officer duly authorized to take acknowledgments in the State of Florida, Dustin Pi llonato personally appeared. He acknowledged before me that he executed the foregoing instrument for the purposes therein stated on the l9±.1.day of (fl ~, Subscribed to before me this ll_ ~ i.-\, day of (Yl~, NOTARY PUBLIC Cb<tl1~i M c.>~.~"" } (print, type, or stamp commissioned Notary Public) ~'~~!/~~,,,. $"J3m~{:~ BERNARD M CASSIDY ~ : ~ Notary Public - State of Aorida, ~~~ ijf My Com~. Expires Sep 26, 2016, ''?f.f.~ ' Comm sslon # EE Personally known / or Produced Identification (check one) Type of Identification Produced:. 16 v? ;41p1

17 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF FLORIDA: By: p wh-t_... _ A -~ fa'r-''-'' A ~A. Conners Associate Deputy Attorney General Department of Legal Affairs Office Of The Attorney General The Capitol Tallahassee, FL Telephone: (850) Dated: #t /.t r_. By:~ Michelle Pardoll Assistant Attorney General Florida Bar No Office Of The Attorney General Consumer Protection Division 11 0 S.E. 6'h Street, h Floor Fort Lauderdale, Florida Telephone: (954) Dated:...(I). c. /1? 7 'I I ENTRY OF JUDGMENT SO ORDERED. Approved and Entered in Chambers in Palm Beach County. Florida this By: 17 D? /lf1

18 cc: Michelle Pardoll, Esquire Assistant Attorney General Florida Bar No Office of the Attorney General Consumer Protection Division II 0 S.E Street, I Floor Fort Lauderdale, Florida Telephone: (954) Marshall A. Adams, Esquire MAA@LubellRosen.com Florida Bar No Bernard M. Cassidy, Esquire BMC@LubellRosen.com Florida Bar No.: ooq<(3<)" I 200 South Andrews A venue Suite 900 Fort Lauderdale, Florida \??)1;11}