FILED: NEW YORK COUNTY CLERK 03/21/ :25 PM INDEX NO /2016 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 03/21/2017 EXHIBIT E

Transcription

1 EXHIBIT E

2 Case 114-cv VSB Document 40 Filed 03/20/15 Page 1 of 20 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DEMOND MOORE and MICHAEL KIMMELMAN, P.C. v. Plaintiffs, IOD INCORPORATED and, NYU HOSPITALS CENTER, Defendants. No. 114-cv VSB FIRST AMENDED CLASS ACTION COMPLAINT Plaintiffs Demond Moore ( Moore ) and Michael Kimmelman, P.C. ( Kimmelman ) (together, Plaintiffs ), by their attorneys, bring this action on behalf of themselves and all others similarly situated against Defendants IOD Incorporated ( IOD ) and NYU Hospitals Center, commonly known as NYU Langone Medical Center ( NYULMC ) (together, Defendants ). INTRODUCTION 1. This action is brought by Plaintiffs as a class action on behalf of themselves and all others similarly situated, whose joinder in this action is impracticable. 2. Plaintiff Moore and qualified persons acting on his behalf and Plaintiff Kimmelman, a law firm and qualified person acting on behalf of its clients, were overcharged by IOD for copies of patient information (hereinafter also referred to as medical records ) requested from New York health care providers, in violation of the statutory maximum charges permissible under New York Public Health Law 18, which are not to exceed the lesser of the costs incurred or seventy-five cents ($0.75) per page. 3. This class action is brought for IOD s violation of Public Health Law 18, deceptive acts and practices in violation of New York General Business Law 349,., and

3 Case 114-cv VSB Document 40 Filed 03/20/15 Page 2 of 20 unjust enrichment, to recover for the damages caused to Plaintiffs and all those similarly situated, including treble damages and restitution for all excess monies paid by Plaintiffs and the members of the Class (defined below), with interest, attorneys fees, costs and disbursements. 4. On behalf of a sub-class of qualified persons whom IOD charged for fulfilling requests for medical records directed to NYULMC, Plaintiff Moore also brings these claims against NYULMC, the health care provider from which his medical records were requested. PARTIES 5. Plaintiff Moore is an individual currently residing in Levittown, New York. 6. Plaintiff Kimmelman is a New York professional corporation with a principal place of business in New York, New York. 7. IOD is a Wisconsin for-profit corporation with a principal place of business in Green Bay, Wisconsin. 8. At all relevant times herein, IOD was and is duly licensed to conduct business in the State of New York. 9. NYULMC is a New York not-for-profit hospital with a principal place of business in New York, New York. JURISDICTION AND VENUE 10. This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. 1332(d)(2)(A), in that this is a civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which... any member of a class of plaintiffs is a citizen of a State different from any defendant Plaintiffs are citizens of the State of New York. Defendant IOD, the primary defendant, is a citizen of the State of Wisconsin. 2

4 Case 114-cv VSB Document 40 Filed 03/20/15 Page 3 of Venue is proper in the United States District Court for the Southern District of New York pursuant to 28 U.S.C. 1391(b) because IOD and NYULMC conduct business in this District and a substantial part of the events and omissions giving rise to the claims occurred in this District. CLASS ALLEGATIONS 13. This class action is brought on behalf of Plaintiffs and the following class (the Class ) to recover for the harm caused by Defendant IOD s pattern of unlawful and deceptive acts and practices as alleged herein All qualified persons who requested copies of patient information from a health care provider located in the State of New York, and who paid Defendant IOD Incorporated for said copies between September 12, 2008 and the present (the Class Period ). 14. Plaintiff Moore also asserts his claims against Defendant NYULMC on behalf of the following sub-class (the NYULMC Sub-Class ) All qualified persons who requested copies of patient information from NYULMC, and who paid Defendant IOD Incorporated for said copies within the Class Period. 15. Throughout the Class Period, IOD engaged in deceptive acts and practices and violated New York law by charging Class members more than the costs incurred to provide qualified persons copies of their medical records on behalf of New York health care providers, pursuant to New York Public Health Law Rather than abiding by the statutory limitations, IOD willfully overcharged patients to the detriment of Plaintiff and the other members of the Class. 17. Because IOD has acted and continues to act as an agent of the health care providers in the State of New York for which it fulfills requests for medical records, those health care providers, including but not limited to NYULMC, are subject to vicarious liability for IOD s wrongful conduct. 3

5 Case 114-cv VSB Document 40 Filed 03/20/15 Page 4 of The Class and NYULMC Sub-Class, as defined above, are identifiable and unambiguous based upon objective information and criteria. 19. Plaintiffs are members of the Class, and Plaintiff Moore is a member of the NYULMC Sub-Class. 20. The members of the Class and NYULMC Sub-Class are so numerous that joinder is impractical. Upon information and belief, the Class and NYULMC Sub-Class are comprised of thousands of individuals. 21. There are questions of law and fact common to the members of the Class and NYULMC Sub-Class, which questions predominate over any individual issues. 22. The claims and defenses of Plaintiffs are typical of the claims of all members of the Class and NYULMC Sub-Class. By proving their case, Plaintiffs will simultaneously prove the case of the members of the Class and NYULMC Sub-Class Plaintiffs will fairly and adequately represent the Class and NYULMC Sub-Class. Plaintiffs are willing and able to serve as a representatives of the Class and NYULMC Sub-Class, and have no knowledge of any possible divergent interest between themselves and any member of the Class or NYULMC Sub-Class. 25. Plaintiffs have retained highly competent counsel experienced in class actions and complex litigation to provide representation on behalf of Plaintiffs and the Class and NYULMC Sub-Class. 26. The prosecution of separate actions by individual members of the Class or NYULMC Sub-Class would create a risk of inconsistent or varying adjudications with respect to individual members of the Class or NYULMC Sub-Class, which would establish incompatible standards of conduct for Defendants. 4

6 Case 114-cv VSB Document 40 Filed 03/20/15 Page 5 of The prosecution of separate actions would also create a substantial risk of adjudications with respect to individual members of the Class or NYULMC Sub-Class, which would, as a practical matter, be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests. 28. Questions of law and fact common to members of the Class and NYULMC Sub- Class predominate over any questions affecting individual members. The determinative facts and legal principles apply universally among Plaintiffs and the members of the Class. 29. Indeed, the predominant legal issue in this case, which cuts across the entire Class, is whether IOD breached a legal duty universally owed to Plaintiffs and the members of the Class and NYULMC Sub-Class in failing to limit the charge for copies of medical records to the costs incurred for said copies, as required by New York Public Health Law Other common questions of law and fact, which predominate over any questions affecting solely individual members of the Class and NYULMC Sub-Class, include but are not necessarily limited to a. b. Whether IOD violated General Business Law 349,.; Whether IOD willfully or knowingly violated General Business Law 349,., and, if so, whether treble damages should be imposed against IOD; c. Whether IOD was unjustly enriched to the detriment of Plaintiff and the members of the Class; d. Whether punitive damages should be awarded to Plaintiff and the members of the Class and, if so, the extent of such damages. 5

7 Case 114-cv VSB Document 40 Filed 03/20/15 Page 6 of Additional common questions of law and fact affecting the members of the NYULMC Sub-Class, and which predominate over any questions affecting solely individual members of the NYULMC Sub-Class, include but are not necessarily limited to a. Whether IOD was acting as NYULMC s agent for purpose of copying, furnishing and billing for medical records in response to requests made to NYULMC by its patients and qualified persons acting on their behalf; b. c. Whether NYULMC is vicariously liable for IOD s wrongful conduct; and Whether, if IOD did not owe Plaintiffs and the members of the Class and NYULMC Sub-Class a legal duty under New York Public Health Law 18, NYULMC is directly liable to Plaintiff Moore and the NYULMC Sub-Class for the difference between any fees NYULMC paid to IOD or other costs incurred by NYULMC in fulfilling records requests and the fees that IOD charged members of the NYULMC Sub-Class. 32. If liability against either or both Defendants is established on the basis of the common facts applied to universally applicable principles of law, then damages can be precisely calculated based on objective data. 33. A class action is superior to other available methods for the fair and efficient adjudication of the controversy for reasons including that, due to the expense of pursuing individual litigation regarding Defendants common course of conduct alleged herein, members of the Class and NYULMC Sub-Class would, as a practical matter, be effectively precluded from protecting and enforcing their legal rights. 6

8 Case 114-cv VSB Document 40 Filed 03/20/15 Page 7 of 20 FACTUAL ALLEGATIONS 34. New York Public Health Law 18(2)(d) provides in relevant part that, upon the written request of any qualified person, a health care provider shall furnish to such person, within a reasonable time, a copy of any patient information requested New York Public Health Law 18(2)(e) provides in relevant part that, [t]he provider may impose a reasonable charge for all inspections and copies, not exceeding the costs incurred by such provider Irrespective of the costs incurred, New York Public Health Law 18(2)(e) further provides in relevant part that the reasonable charge for paper copies shall not exceed seventy-five cents per page. 37. NYULMC is a health care provider within the meaning of New York Public Health Law 18(1)(b). 38. IOD is engaged in the business of fulfilling requests for medical records directed to health care providers in the State of New York, including NYULMC. 39. Upon information and belief, IOD does not charge healthcare providers for fulfilling requests for medical records. Instead, IOD provides this service to health care providers for free, in exchange for the right to bill requestors of health records, including qualified persons, under New York Public Health Law During the Class Period, IOD has acted and continues to act as an agent of the health care providers in the State of New York for which it fulfills requests for medical records, including NYULMC. 41. During the Class Period, the health care providers in the State of New York that have retained IOD to fulfill requests for medical records, including NYULMC, have given IOD 7

9 Case 114-cv VSB Document 40 Filed 03/20/15 Page 8 of 20 express, implied, and/or apparent authority to act on their behalf and under their direction and control with respect to the copying, furnishing, and billing for copies of medical records in response to such requests. 42. During the Class Period, the health care providers in the State of New York that have retained IOD to fulfill requests for medical records, including NYULMC, have given IOD access to, custody, possession, and/or control of said persons medical records. 43. During the Class Period, IOD has charged and continues to charge more than the costs incurred for copies of medical records requested of health care providers in New York State by Plaintiffs and the members of the Class. 44. During the Class Period, IOD has charged and continues to charge more than NYULMC s costs incurred for copies of medical records requested by Plaintiff Moore and the members of the NYULMC Sub-Class. 45. The cost for providing copies of medical records incurred by IOD is less than seventy-five cents ($0.75) per page. 46. The cost for providing copies of medical records incurred by the health care providers in the State of New York for which IOD fulfills requests for medical records is less than seventy-five cents ($0.75) per page. 47. Yet, during the Class Period, IOD routinely has charged qualified persons the statutory maximum of seventy-five cents ($0.75) per page. 48. As a result, IOD has obtained substantial profits and windfalls and has been unjustly enriched at the expense of Plaintiff and the members of the Class and NYULMC Sub- Class, who have been and continue to be charged for copies of medical records in excess of the legally permissible rate and have suffered substantial damages as a result. 8

10 Case 114-cv VSB Document 40 Filed 03/20/15 Page 9 of To the extent that New York Public Health Law 18 permits IOD to impose a reasonable charge for all inspections and copies, not exceeding the costs incurred when it fulfils requests for medical records directed to New York health care providers, Plaintiffs and the members of the Class seek,, to recover the difference between the per-page copying fee charged by IOD and the per-page cost IOD actually incurs. 50. To the extent that New York Public Health Law 18 does permit IOD to impose a reasonable charge for all inspections and copies, not exceeding the costs incurred when it fulfills requests for medical records directed to New York health care providers, Plaintiffs and the members of the Class seek,, to recover the entire per-page copying fee charged by IOD. Plaintiff Moore s Transaction 51. In or about October 2011, Plaintiff Moore, by and through his through his attorneys, Simonson Hess Leibowitz & Goodman, P.C., made a written request of NYULMC to provide copies of medical records reflecting its treatment of Plaintiff. 52. Plaintiff Moore made said request of NYULMC in connection with a personal injury lawsuit bearing New York Supreme Court Index Number 5224/11 (Kings County), in which Plaintiff Moore was represented by Simonson Hess Leibowitz & Goodman, P.C. pursuant to the retainer agreement attached hereto as Exhibit A. 53. Plaintiff Moore is a qualified person within the meaning of New York Public Health Law 18(1)(g). 54. As attorneys representing Plaintiff Moore, Simonson Hess Leibowitz & Goodman, P.C. also was acting as a qualified person within the meaning of New York Public Health Law 18(1)(g) in making said request. 9

11 Case 114-cv VSB Document 40 Filed 03/20/15 Page 10 of During the period inclusive of October 2011, and for some time prior and subsequent thereto, NYULMC had a contract, agreement, or arrangement with IOD, whereby, among other things, IOD would copy and furnish medical records on behalf of NYULMC, in response to written requests made to NYULMC, and would bill said persons for copying and forwarding the medical records. 56. Pursuant to the foregoing contract, agreement, or arrangement, NYULMC gave IOD access to, possession, custody, and/or control of Plaintiff Moore s medical records, and IOD copied Plaintiff s medical records. 57. Pursuant to the foregoing contract, agreement, or arrangement, NYULMC gave IOD express, implied, and/or apparent authority to act on NYULMC s behalf and under its direction and control with respect to the copying, furnishing, and billing for copies of medical records in response to such requests, and IOD acted as NYULMC s agent when it copied, furnished, and billed for copies of Plaintiff Moore s medical records. 58. On or about October 25, 2011, IOD responded to Plaintiff Moore s request for copies of his medical records and forwarded a bill in the amount of $1, for copying 1503 pages of medical records. The bill stated that said fee represented $1, for copying (at a unit price of $0.75 per page) and $15.90 for shipping. 59. Plaintiff Moore, through his attorneys, Simonson Hess Leibowitz & Goodman, P.C., paid said $1, bill on or about October 26, Given that NYULMC submitted Plaintiff Moore s request for copies of his medical records to IOD, Plaintiff Moore and his attorneys, Simonson Hess Leibowitz & Goodman, P.C., reasonably believed that IOD had authority to act on behalf of NYULMC in furnishing and billing for copies of Plaintiff Moore s medical records. 10

12 Case 114-cv VSB Document 40 Filed 03/20/15 Page 11 of Pursuant to his retainer agreement with Simonson Hess Leibowitz & Goodman, P.C., Plaintiff Moore was obligated and responsible for paying disbursements, in accordance with New York State Judiciary Law, in the event of a monetary recovery by way of settlement. 62. On or about March 5, 2014, Plaintiff Moore settled the aforementioned personal injury lawsuit and paid his share of the case disbursements associated with the case, including the copy charges paid to IOD by Plaintiff Moore s attorneys, Simonson Hess Leibowitz & Goodman, P.C. 63. The fee charged to Plaintiff Moore was in excess of IOD s costs incurred in copying said medical records. 64. The fee charged to Plaintiff Moore was in excess of NYULMC s costs incurred in copying said medical records. 65. As a direct and proximate result of the foregoing, Plaintiff Moore suffered damages by, among other things, being caused to pay fees for the medical records in excess of the legally permissible rate. Plaintiff Kimmelman s Transactions 66. In or about July 2013, Plaintiff Kimmelman made a written request of Westchester Medical Center, a provider located in Westchester County, New York, for copies of medical records reflecting its treatment of one of Plaintiff Kimmelman s clients ( Client 1 ). 67. Plaintiff Kimmelman made said request of Westchester Medical Center in connection with his representation of Client 1 in a personal injury lawsuit, pursuant to Client 1 s written authorization. 68. Client 1 is a qualified person within the meaning of New York Public Health Law 18(1)(g). 11

13 Case 114-cv VSB Document 40 Filed 03/20/15 Page 12 of As attorneys representing Client 1, Plaintiff Kimmelman also was acting as a qualified person within the meaning of New York Public Health Law 18(1)(g) in making said request. 70. During the period inclusive of July 2013, and for some time prior and subsequent thereto, Westchester Medical Center had a contract, agreement, or arrangement with IOD, whereby, among other things, IOD would copy and furnish medical records on behalf of Westchester Medical Center, in response to written requests made to Westchester Medical Center, and would bill said persons for copying and forwarding the medical records. 71. Pursuant to the foregoing contract, agreement, or arrangement, Westchester Medical Center gave IOD access to, possession, custody, and/or control of Client 1 s medical records, and IOD copied Client 1 s medical records. 72. Pursuant to the foregoing contract, agreement, or arrangement, Westchester Medical Center gave IOD express, implied, and/or apparent authority to act on Westchester Medical Center s behalf and under its direction and control with respect to the copying, furnishing, and billing for copies of medical records in response to such requests, and IOD acted as Westchester Medical Center s agent when it copied, furnished, and billed for copies of Client 1 s medical records. 73. On or about July 26, 2013, IOD responded to Plaintiff Kimmelman s request for copies of Client 1 s medical records and forwarded a bill in the amount of $62.17 for copying 76 pages of medical records. The bill stated that said fee represented $57.00 for copying (at a unit price of $0.75 per page) and $5.17 for postage. 74. Plaintiff Kimmelman paid said $62.17 bill on or about August 1,

14 Case 114-cv VSB Document 40 Filed 03/20/15 Page 13 of Given that Westchester Medical Center submitted Plaintiff Kimmelman s request for copies of Client 1 s medical records to IOD, Plaintiff Kimmelman, reasonably believed that IOD had authority to act on behalf of Westchester Medical Center in furnishing and billing for copies of Client 1 s medical records. 76. The fee charged to Plaintiff Kimmelman was in excess of IOD s costs incurred in copying said medical records. 77. The fee charged to Plaintiff Kimmelman was in excess of Westchester Medical Center s costs incurred in copying said medical records. 78. As a direct and proximate result of the foregoing, Plaintiff Kimmelman suffered damages by, among other things, being caused to pay fees for the medical records in excess of the legally permissible rate. 79. In or about October 2014, Plaintiff Kimmelman made a written request of New York-Presbyterian/Weill Cornell Medical Center ( NYP Cornell ), a provider located in New York County, New York, for copies of medical records reflecting its treatment of one of Plaintiff Kimmelman s clients ( Client 2 ). 80. Plaintiff Kimmelman made said request of Westchester Medical Center in connection with his representation of Client 2 in a personal injury lawsuit, pursuant to Client 2 s written authorization. 81. Client 2 is a qualified person within the meaning of New York Public Health Law 18(1)(g). 82. As attorneys representing Client 2, Plaintiff Kimmelman also was acting as a qualified person within the meaning of New York Public Health Law 18(1)(g) in making said request. 13

15 Case 114-cv VSB Document 40 Filed 03/20/15 Page 14 of During the period inclusive of October 2014, and for some time prior and subsequent thereto, NYP Cornell had a contract, agreement, or arrangement with IOD, whereby, among other things, IOD would copy and furnish medical records on behalf of NYP Cornell, in response to written requests made to NYP Cornell, and would bill said persons for copying and forwarding the medical records. 84. Pursuant to the foregoing contract, agreement, or arrangement, NYP Cornell gave IOD access to, possession, custody, and/or control of Client 2 s medical records, and IOD copied Client 2 s medical records. 85. Pursuant to the foregoing contract, agreement, or arrangement, NYP Cornell gave IOD express, implied, and/or apparent authority to act on NYP Cornell s behalf and under its direction and control with respect to the copying, furnishing, and billing for copies of medical records in response to such requests, and IOD acted as NYP Cornell s agent when it copied, furnished, and billed for copies of Client 2 s medical records. 86. On or about October 28, 2014, IOD responded to Plaintiff Kimmelman s request for copies of Client 2 s medical records and forwarded a bill in the amount of $10.11 for copying 12 pages of medical records. The bill stated that said fee represented $9.00 for copying (at a unit price of $0.75 per page) and $1.11 for shipping. 87. Plaintiff Kimmelman paid said $10.11 bill on or about October 29, Given that NYP Cornell submitted Plaintiff Kimmelman s request for copies of Client 2 s medical records to IOD, Plaintiff Kimmelman, reasonably believed that IOD had authority to act on behalf of NYP Cornell in furnishing and billing for copies of Client 1 s medical records. 14

16 Case 114-cv VSB Document 40 Filed 03/20/15 Page 15 of The fee charged to Plaintiff Kimmelman was in excess of IOD s costs incurred in copying said medical records. 90. The fee charged to Plaintiff Kimmelman was in excess of NYP Cornell s costs incurred in copying said medical records. 91. As a direct and proximate result of the foregoing, Plaintiff Kimmelman suffered damages by, among other things, being caused to pay fees for the medical records in excess of the legally permissible rate. COUNT I Violation of New York Public Health Law 18 (As Against Both Defendants) 92. Plaintiffs hereby incorporate by reference each and every allegation contained in paragraphs 1 through 91 of this Complaint as if fully alleged herein. 93. Defendant IOD is required to comply with New York Public Health Law 18 when providing medical records to Plaintiffs and other members of the Class (including the NYULMC Sub-Class) in response to their written requests directed to health care providers in New York. 94. New York Public Health Law 18(2)(e) prohibits Defendant IOD from charging fees for copies of medical records that exceed Defendant IOD s costs incurred in providing said medical records. 95. New York Public Health Law 18(2)(e) further prohibits Defendant IOD from charging in excess of seventy-five cents ($0.75) per page for paper copies of such medical records, irrespective of the costs incurred in copying said medical records. 96. Defendant IOD has violated New York Public Health Law 18 by charging amounts in excess of the costs incurred to provide medical records. 15

17 Case 114-cv VSB Document 40 Filed 03/20/15 Page 16 of Defendant IOD systematically has engaged in these illegal practices to the detriment of Plaintiff and the other members of the Class, including the NYULMC Sub-Class. 98. As a direct and proximate result of the foregoing, Plaintiff and the other members of the Class and the NYULMC Sub-Class have been injured and suffered a monetary loss, and they are entitled to,, recovery of their actual damages and any other remedies afforded at law or in equity. 99. As IOD s principal, NYULMC is liable to Plaintiff Moore and the members of the NYULMC Sub-Class with and to the same extent as IOD. COUNT II Violation of New York General Business Law 349 (As Against Both Defendants) 100. Plaintiffs hereby incorporate by reference each and every allegation contained in paragraphs 1 through 99 of this Complaint as if fully alleged herein The foregoing conduct by Defendant IOD constituted and continues to constitute deceptive acts and practices in violation of New York General Business Law 349,., and other applicable consumer protection laws, rules and regulations Defendant IOD has violated New York General Business Law 349,, by,, deceptively and misleadingly a. b. Charging amounts in excess of the actual cost to produce medical records; Charging seventy-five cents ($0.75) per page for copies of medical records, while failing to disclose that the actual cost of photocopying was below seventy-five cents ($0.75) per page; and c. Failing to disclose the costs incurred to produce medical records. 16

18 Case 114-cv VSB Document 40 Filed 03/20/15 Page 17 of The foregoing conduct by Defendant IOD was and is directed to consumers of healthcare providers, namely Plaintiffs and the other members of the Class (including the NYULMC Sub-Class) As a direct and proximate result of the foregoing, Plaintiffs and the other members of the Class and the NYULMC Sub-Class have been injured and suffered a monetary loss, and they are entitled to,, recovery of their actual and/or statutory damages, trebling of their damages, attorneys fees, costs, disbursements and any other remedies afforded at law or in equity As IOD s principal, NYULMC is liable to Plaintiff Moore and the members of the NYULMC Sub-Class with and to the same extent as IOD. COUNT III Unjust Enrichment (As Against Defendant IOD) 106. Plaintiffs hereby incorporate by reference each and every allegation contained in paragraphs 1 through 105 of this Complaint as if fully alleged herein To the extent that New York Public Health Law 18 permits IOD to impose a reasonable charge for all... copies, not exceeding the costs incurred when it fulfills requests for medical records directed to New York health care providers, as a result of the foregoing conduct, Defendant IOD has wrongfully collected from Plaintiffs and the members of the Class amounts of money in excess of the costs incurred in providing copies of medical records pursuant to New York Public Health Law To the extent that New York Public Health Law 18 does permit IOD to impose a reasonable charge for all inspections and copies when it fulfills requests for medical records directed to New York health care providers, as a result of the foregoing conduct, 17

19 Case 114-cv VSB Document 40 Filed 03/20/15 Page 18 of 20 Defendant IOD has wrongfully collected from Plaintiffs and the members of the Class amounts of money constituting IOD s entire charge for such copies The receipt of payments of such excessive, improper, and unlawful fees has unjustly enriched, benefitted, and created a windfall for IOD, to the detriment and damage of Plaintiffs and the members of the Class Based on the foregoing, Plaintiffs and the members of the Class are entitled to recover from IOD all amounts to which IOD has been unjustly enriched, with interest accruing from the time of payment, trebling of the damages, costs, disbursements and attorneys fees. 18

20 Case 114-cv VSB Document 40 Filed 03/20/15 Page 19 of 20 PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for a judgment (a) Declaring that this action may be maintained as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for an order certifying this case as a class action; (b) Awarding actual and/or statutory damages on behalf of Plaintiffs and the Class members in an amount to be proved at trial; (c) Awarding treble damages as permitted under New York General Business Law 349,. (d) Awarding Plaintiffs and the Class all expenses, costs, and disbursements incident to the prosecution of this action, including reasonable attorneys fees; (e) Ordering Defendant IOD to refund the illegal amounts charged to Plaintiffs and the Class members; (f) (g) (h) Awarding prejudgment interest to Plaintiffs and the Class; Enjoining Defendants deceptive acts and practices; and For such other and further relief as allowed by law and/or as is equitable under the circumstances. Dated March 20, 2015 Steven L. Hess SIMONSON HESS LEIBOWITZ & GOODMAN, P.C. 299 Broadway Suite 1220 New York, NY (212) sh@hessleibowitz.com THE PLAINTIFFS, DEMOND MOORE AND MICHAEL KIMMELMAN, P.C., BY THEIR ATTORNEYS By William H. Narwold Mathew P. Jasinski MOTLEY RICE LLC 20 Church St., 17th Floor Hartford, CT (860) (860) (fax) bnarwold@motleyrice.com mjasinski@motleyrice.com 19

21 Case 114-cv VSB Document 40 Filed 03/20/15 Page 20 of 20 CERTIFICATE OF SERVICE I hereby certify that on March 20, 2015, a copy of the foregoing First Amended Class Action Complaint was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by to all parties by operation of the Court s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court s CM/ECF system. Dated March 20, 2015 Hartford, CT Mathew P. Jasinski MOTLEY RICE LLC 20 Church Street, 17th Floor Hartford, CT Tel. (860) Fax (860) mjasinski@motleyrice.com 20