v.file/asap+tech.pdf · 2018-07-19 · scope of consent final judgment and stipulated permanent...
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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
Defendants, and
ASAP TOTAL HOME, LLC, and KESILS MARKETING, LLC, and ASAP HOME ENTERTAINMENT, LLC
Relief Defendants.
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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
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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 501.20 1 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 33445.
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
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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 501.20 1 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:
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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 61h 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 1843 16th Avenue Nmih, Lake Worth, Florida 33460.
2. 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 50 1.202(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 50 1.207(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 of the Permanent Injunction.
I. Injunctive Terms
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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
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intentionally obtaining any pecuniary benefit from the priYate (i.e. not
public) consumer information, including name, address, telephone
number, e-mail 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. §501.207(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 , 11 05 (S.D. Fla. 1995); F. T. C. v. People 's Credit First, No. 8:03-CV-
2353-T, 2005 WL 3468588 (M.D. Fla. Dec. 18. 2005).
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 speci fically by Defendants, after the date of the entry of th is final judgment.
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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. 151 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 $10,000.00 per violation.
§501.2075, 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. 1981 ).
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 6111 Street,
10111 Floor, Fort Lauderdale, Florida 3330 1.
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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
501.2101(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 $10,000.00
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
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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, 2015. 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.
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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 1.977 (Fact Information Sheet),
including all required attachments, and serve it on the Attorney General, within 30 days from the
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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 222.11, 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 222.11 , 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
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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
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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.
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AGREED TO:
By: ~,~ ¥211? Michael McArdle, (Date Signed) Authorized agent of ASAP Tech Help, LLC
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.
I
Subscribed to before me this aqt--\ day of (Y\~1 , 2015. J
'
~ ....... ~~~~'~(:~,,, f~m·· <t-\_ BERNARD M CASSIDY •
~ ~ • : • ~ Notary Public - State of Florida ~ ~~"' ~~f My Comm. Expires Sep 2& 2016 • ,,~.OF f\.o: ,,, Com I •
, '''"""''' m sslon # EE 838459
(print, type, or stamp commissioned Notary Public) -
Personally known / or Produced Identification ___ (check one)
Type of Identification Produced: ____ _____ _
By: ~~~~----------------------------------------~---+----~arshall Adams, Esq. (Date Signed)
/ lorida Bar No. 712426
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By ;~ ~fCAnJie,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. , , 20 15.
Subscribed to before me this ~jL"-1 day of «\""-' I , 20 It '
(print, type, or stamp commissioned Notary Public)
Personally known / or Produced Identification ___ (check one)
Type of Identification Produced: ___ _ ____ _ _
15
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/~m~<i'\ BERNARD M CASSlDV • ~ ; • • : • i Notary Public - State ot Florid ~
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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 ~ , 20 15.
Subscribed to before me this ll_ ~ i.-\, day of (Yl~ , 2015.
NOTARY PUBLIC
Cb<tl1~i M c.>~.~"" }
(print, type, or stamp commissioned Notary Public)
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• ~ • : • ~ Notary Public - State of Aorida , ~~~ ijf My Com~. Expires Sep 26, 2016 , ''••?f.f.~··•' Comm•sslon # EE 838459
-- - --Personally known / or Produced Identification _ __ (check one)
Type of Identification Produced:. _________ _
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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 32399-1 050 Telephone: (850) 245-0140
Dated: #t¥/.t r_.
By:~ Michelle Pardoll Assistant Attorney General Florida Bar No. 0073915 Office Of The Attorney General Consumer Protection Division 11 0 S.E. 6'h Street, 1 01h Floor Fort Lauderdale, Florida 33301 Telephone: (954) 712-4600
Dated: ...(I). c. /1? 7 'I I
ENTRY OF JUDGMENT
SO ORDERED. Approved and Entered in Chambers in Palm Beach County. Florida this
By:
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cc:
Michelle Pardoll, Esquire [email protected] Assistant Attorney General Florida Bar No. 0073915 • Office of the Attorney General Consumer Protection Division II 0 S.E. 6111 Street, I 0111 Floor Fort Lauderdale, Florida 33301 Telephone: (954) 712-4665
Marshall A. Adams, Esquire [email protected] Florida Bar No. 712426 Bernard M. Cassidy, Esquire [email protected] Florida Bar No.: ooq<(3<)" I 200 South Andrews A venue Suite 900 Fort Lauderdale, Florida 33301 954-880-9500
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