Axiom Worldwide Sued By
Florida Attorney General

Stephen Barrett, M.D.


The Florida Attorney General's office has has accused Axiom Worldwide, its president and CEO James J. Gibson, and its vice-president Nicholas Exarhos of using false and misleading claims to market their spinal decompression machines. The complaint (shown below) states:

The Attorney General's lawsuit suit seeks (a) an injunction barring further deceptive practices, (b) restitution to consumers, and (c) disgorgement to the State of Florida of all revenues that resulted from "transactions with consumers, generated as a result of the unconscionable, unfair and deceptive practices" identified in the complaint.

Chirobase has more information about spinal decompression devices.


IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

STATE OF FLORIDA,
DEPARTMENT OF LEGAL AFFAIRS,
OFFICE OF THE ATTORNEY GENERAL,
Plaintiff,
vs. AXIOM WORLDWIDE, INC.;
AXIOM WORLDWIDE, L.L.C.;
JAMES J. GIBSON, JR., an individual; and
NICHOLAS EXARHOS, an individual,
Defendants.

CASE NO. 09 29033
DIVISION: H

 

 

RECEIVED AND FILED NOV 19, 2009

 

COMPLAINT FOR INJUNCTIVE AND OTHER STATUTORY RELIEF

Plaintiff, STATE OF FLORIDA, DEPARTMENT OF LEGAL AFFAIRS, OFFICE OF THE ATTORNEY GENERAL ("Attorney General") sues Defendants Axiom Worldwide, Inc, Axiom Worldwide, L.L.C., James J. Gibson, Jr., and Nicholas Exarhos, and alleges:

JURISDICTION AND VENUE

1. This is an action for monetary, injunctive, and other equitable and statutory relief, brought pursuant to the Florida Deceptive and Unfair Trade Practices Act, Chapter 501, Part II, Florida Statutes (2009).

2. This court has jurisdiction pursuant to the provisions of Chapter 501, Part II, Florida Statutes. The acts or practices alleged herein occurred in the conduct of "trade or commerce" as defined in § 501.203(8), Florida Statutes.

3. The Office of the Attorney General seeks relief in an amount greater than Fifteen Thousand Dollars ($15,000.00), exclusive of interest, costs, and attorneys fees.

4. The violations alleged herein affect more than one judicial circuit of the State of Florida.

5. Venue is proper in this court as statutory violations have occurred within and without Hillsborough County.

6. All other conditions precedent to this action have occurred.

THE PARTIES

7. Plaintiff is an enforcing authority of Chapter 501, Part II, Florida Statutes, and is authorized to bring this action and to seek injunctive and other statutory relief pursuant thereto.

8. Plaintiff has conducted an investigation of the matters alleged herein, and Attorney General Bill McCollum has determined that this enforcement action serves the public interest.

9. At all times material hereto, Defendant Axiom Worldwide, Inc., has been a Florida corporation with its principal place of business at 9423 Corporate Lake Drive, Tampa, Florida, 33634. The website www.axiomworldwide.com is represented to be operated through Axiom Worldwide, Inc.

10. At all times material hereto since December 29, 2005, Defendant Axiom Worldwide, L.L.C., has been a Florida limited liability corporation with its principal place of business at 9423 Corporate Lake Drive, Tampa, Florida, 33634. On information and belief, the primary operations of Axiom Worldwide are currently conducted and have been conducted through this entity since January 2006. Collectively, the term "Axiom" refers to both corporate defendants, Axiom Worldwide, Inc., and Axiom Worldwide, L.L.C.

11. At all times material hereto, Defendant James J. Gibson, Jr. has been and is the Chief Executive Officer and President, a Director, and an owner of Axiom Worldwide, Inc., and a Managing Member and an owner of Axiom Worldwide, L.L.C. Defendant Gibson is a founder of Axiom Worldwide, Inc., and Axiom Worldwide, L.L.C., is a resident of Florida and, on information and belief, resides in Hillsborough County, Florida. Defendant Gibson led and participated in sales presentations; functioned as a sales representative on multiple Florida sales; reviewed and approved material for advertising, press releases, or for the website; and was the addressee of critical correspondence from the U. S, Food and Drug Administration ("FDA"), National Aeronautics and Space Administration ("NASA") legal counsel, physicians and others. Defendant Gibson acquired the rights for www.axiomworldwide.com and is shown as the administrative contact on the domain registration for www.axiompainsolutions.com. an Axiom Worldwide website. At all times material hereto, Defendant Gibson has had the responsibility and authority to prevent violations of Florida Statutes concerning deceptive and unfair trade practices. At all times material hereto, Defendant Gibson directly participated in the conduct; or directed or controlled the practices and policies of Defendants Axiom Worldwide, Inc., and Axiom Worldwide, L.L.C., and had actual or constructive knowledge of the acts and practices alleged herein or exercised a reckless indifference to the conduct of these Axiom Defendants as alleged herein.

12. At all times material hereto, Defendant Nicholas Exarhos has been the Vice President or Executive Vice President, a Director, and an owner of Axiom Worldwide, Inc., and a Managing Member and an owner of Axiom Worldwide, L.L.C. Defendant Exarhos was a founder of Axiom Worldwide, Inc., and Axiom Worldwide, L.L.C., is a resident of Florida and, on information and belief, resides in Hillsborough County, Florida. Defendant Exarhos has functioned as the head of marketing; participated in sales presentations; functioned as a sales representative on multiple sales; reviewed and approved material for press releases or for the website, including templates for physicians' websites. At all times material hereto, Defendant Exarhos has had the responsibility and authority to prevent violations of Florida Statutes concerning deceptive and unfair trade practices. At all times material hereto, Defendant Exarhos directly participated in the conduct, or directed or controlled the practices and policies of Defendants Axiom Worldwide, Inc., and Axiom Worldwide, L.L.C., and had actual or constructive knowledge of the acts and practices alleged herein or exercised a reckless indifference to the conduct of these Axiom Defendants as alleged herein.

DEFENDANTS' COURSE OF CONDUCT

Overview

13. Defendants have systematically advertised and promoted the DRX9000, a purported nonsurgical spinal decompression device to treat back pain, to physicians through deceptive and unfair acts and practices, false and misleading advertising, and through unsubstantiated claims of success. Since at least 2001, Defendants have engaged in the manufacturing, distribution, advertising and marketing of their flagship product, the DRX9000, a medical device, to physicians engaged in the practice of treating patients with back pain. Headquartered in Tampa, Defendants have manufactured and continue to manufacture the DRX9000, together with predecessor products and optional add-ons (collectively referred to as "DRX9000") at its local facility. Defendants have advertised, marketed and sold more than a thousand DRX9000 devices nationwide, including numerous devices in Florida, to numerous medical doctors, chiropractors, osteopaths, physical therapists and massage therapists (collectively, physicians).

Sales Process

14. Defendants' advertising campaigns have emphasized the following false or misleading claims as key selling points and have touted the DRX9000 as:

A "FDA Approved";
B. "developed by NASA" or "affiliated with NASA," or similar;
C. "86%" successful," "Clinically Proven 86% Effective!" or similar; and
D. "patented" technology.

Physicians were enticed by these claims, among many other claims relating to insurance and billing, to purchase one or more DRX9000 devices.

15. The DRX9000 has been marketed and sold to physicians for approximately $95,000.00 and approximately $125,000.00 if a cervical attachment to the DRX9000 for treatment of neck pain is purchased simultaneously, until a modified product was introduced in 2009.

16. Defendants have aggressively advertised and promoted the DRX9000 through physician seminars, direct mail, infomercials, trade shows, internet lead generation and internet websites, by way of example. Day-long sales presentations were frequently conducted at the Axiom Worldwide headquarters before large audiences of physicians. These physicians were often flown in by Axiom, after being prequalified for purchase. Defendants Gibson and Exarhos, or either of them, would make substantive presentations or appear with the sales team at many of these events to facilitate the sales purchase. In addition to disseminating sales claims through seminars, Defendants and their agents have also distributed video presentations, written materials and other communications making claims about the DRX9000 which induced physicians to purchase one or more DRX9000 devices. Several physicians purchased multiple devices.

17. As part of the sales pitch to physicians, Defendants offer extensive marketing packages to enable the physicians to market the treatment on the DRX9000 to patients. The $95,000.00 sales price includes the marketing package. A media kit which includes sample direct mail advertisements, print advertisements, radio scripts, postcards, brochures, DVDs for physicians' offices, materials order forms and marketing recommendations comprise the , marketing package. Defendants' false and misleading claims have been incorporated into the marketing materials in the media kit provided to physicians and into other materials offered and sold to physicians by Defendants or their representatives. By way of example, sample advertisements included in the media kit have touted the decompression therapy as "clinically proven 86% effective" and performed on "a patented, FDA approved machine designed by former NASA engineers called the DRX9000™.'' On information and belief, numerous physicians ordered and disseminated marketing materials obtained from Defendants or their representatives.

18. To enable physicians to take advantage of the Internet to market the PX9000 to patients, Defendants have also assisted in and facilitated the creation of hundreds of physician websites which promoted treatment on the DRX9000. During the day-long sales presentations or on tours of the Axiom headquarters, Defendants would often introduce physicians to the appropriate person to assist them with a website. As templates for physician websites were created with Axiom Worldwide, Inc., in turn, these claims were replicated in approximately 500 physician websites, By providing physician purchasers with the opportunities to acquire materials from Defendants or their agents, Defendants have facilitated the dissemination of false and deceptive advertising of the DRX9000 to volumes of prospective patients and to the general public.

19. With sales of more than a thousand devices and numerous devices in Florida, sale of the DRX9000 has been lucrative for the corporate and individual Defendants. On information and belief, the corporate Axiom Defendants generated revenues of more than $45 and $50  million in each of 2005 and 2006, respectively.

Defendants' False and Misleading Advertising

20. Since at least 2005 but at least within four (4) years prior to the filing of the complaint, Defendants have advertised or facilitated the dissemination of advertising which was and is false or misleading, at best, in the offer and sale of the DRX9000. Defendants' false and misleading claims include the following more specific claims, by way of example:

    1. the DRX9000, or any portion or feature thereof, is patented by Axiom;
    2. the DRX9000 is FDA "approved"; or
    3. there is an affiliation between NASA and Axiom or between NASA and the DRX9000, including, but not limited to claims that:
      (i) the DRX 9000 resulted from a joint collaboration between Axiom
      and NASA engineers;
      (ii) NASA engineers developed the DRX9000;
      (iii) part of the DRX9000 was discovered by NASA;
      (iv) the DRX9000 contains or embodies NASA technology;
      (v) NASA endorses the DRX9000;
      (vi) "Space age technology" is solving back pain, implying that the technology is one used, discovered, or endorsed by NASA;
    4. the DRX9000 has an 86% success rate for the treatment of degenerative disc disease, disc herniations, sciatica, and post-surgical pain when, in fact, Defendants did not possess competent and reliable evidence to substantiate this claim;
    5. the DRX9000 is a "new medical breakthrough" or "new technology;
    6. most insurance companies provide coverage for treatment on the DRX9000 when, in fact, Defendants knew that many claims were denied and failed to disclose such facts;
    7. Medicare provides reimbursement for treatment on the DRX9000 when, in fact, Defendants knew that many claims were denied and failed to disclose such facts; and
    8. Press Release announcement on February 24, 2009:
      "The Latest DRX9000™ Study Data Published in Peer-Reviewed Journal!"
      When, in fact, such press release links to a marketing-oriented special Preview Issue containing the publication of the purported peer-reviewed study which was not, in fact, peer reviewed; such document contains a misrepresentation that "the spinal decompression system used in the study was approved in May 2006 by the Division of General, Restorative, and Neurological Devices in the U. S. Department of Health and Human Services K060735." (Emphasis added.)

21. Defendants' false and misleading advertising and unsubstantiated claims of success have been the subject of litigation instituted by competitors in the spinal decompression industry and the subject of enforcement actions by law enforcement. In addition, the dissemination of Defendants' claims by physician purchasers in subsequent advertising to prospective patients has subjected numerous Florida chiropractors to disciplinary actions instituted by the Florida Department of Health, Board of Chiropractic Medicine.

North American Medical Corporation, et at. v, Axiom Worldwide, Inc., et at. Litigation District Court

22. On July 14, 2006, Defendants' competitor in the spinal decompression industry, North American Medical Corporation, filed litigation against Defendants Axiom Worldwide, Inc., Defendant Gibson, and Defendant Exarhos, and others, for trademark infringement and false advertising. As of the date of that lawsuit, Defendants clearly had actual notice of challenges to advertising of the DRX9000 at this point in time and had notice even months before, due to issues raised in prior litigation or through correspondence. Nonetheless, Defendants did not immediately cease making and disseminating challenged claims or recall advertising materials from physicians. Instead, Defendants continued their pattern and practice of advertising and disseminating their false or misleading claims and facilitating the dissemination of these claims by physician purchasers.

23. On March 29, 2007, the United States District Court for the Northern District of Georgia entered an Order and preliminary injunction against Defendants, Axiom Worldwide, Inc., Defendant Gibson, and Defendant Exarhos. The court enjoined false advertising of claims which the court determined were literally false and were material to the physician purchasers' decisions to buy the DRX9000, Specifically, the Order indicated, in part, that:

Defendants, their officers, directors, agents, servants, members, and employees, and all other persons in active concert or participation with them who receive actual notice of this Order, are ENJOINED as follows:

(1) Defendants are prohibited from:

(a) Falsely representing that the DRX9000, or any portion or feature thereof, is patented by Defendant Axiom;
(b) Falsely representing that the DRX9000 is FDA "approved"; or
(c) Falsely representing that there is any affiliation between NASA and Axiom or between NASA and the DRX 9000, including, but not limited to, claims that:

(i) the DRX9000 resulted from a joint collaboration
between Axiom and NASA engineers;
(ii) NASA engineers developed the DRX9000;
(iii) part of the DRX9000 was discovered by NASA;
(iv) the DRX9000 contains or embodies NASA technology; or
(v) NASA endorses the DRX9000.

Eleventh Circuit

24. On April 7, 2008, the Eleventh Circuit Court of Appeal entered an Order
affirming the district court's findings that Defendants' claims were literally false and that there was a likelihood of success on the merits on the false advertising claims. Specifically, the Order indicated, in part:

First, the district court did not clearly err when it ruled that Axiom's claims about an affiliation with NASA are literally false.
. . .
Second, the district court likewise did not clearly err when it ruled that Axiom's claims about the DRX9000 being FDA "approved" are literally false.
. . .
In fact, FDA regulations state that it "is misleading and constitutes misbranding" to claim FDA approval when a device is merely FDA cleared. See 21 C.F.R. § 807.97 (2006)."
. . .
The evidence amply supports the district court's conclusion that Axiom's statements are material to consumers' purchasing decisions.

The Eleventh Circuit did reverse the district court, in part, vacating the injunction and remanding for determination of whether irreparable harm had been shown in the context of competitor advertising. Defendants did not appeal the district court's determination that the claim the DRX9000 was "patented" was literally false.

Florida Department of Health, Board of Chiropractic Medicine, Disciplinary Actions

25. Since March 2006, twelve (12) chiropractors in Florida have been subjected to disciplinary proceedings instituted by the Florida Department of Health, Board of Chiropractic Medicine ("Department") through formal administrative complaints. Chiropractors have been required to change advertising practices, pay thousands of dollars in fines and costs, and submit to educational requirements as a result of the proceedings. In these proceedings, claims alleged as false or misleading by the Department in administrative complaints included, without limitation:

    1. Respondent's free report made many claims concerning the DRX9000 which overstated the potential benefits of the DRX9000 system to prospective patients. For instance, the free report stated that the Respondent "wants to give you the DRX9000 experience before it's too late, before ... you loose (sic) your career ... before you become a surgical statistic and end up in a wheel chair .. , before you live your entire life in misery ... before you are beyond help."

    2. Respondent's advertisement offered non-surgical spinal decompression as the "eighth wonder of the world."

    3. Respondent's internet advertisement indicating that the DRX9000 was 86% effective is misleading. The claim is based on one study only. The study used for the basis of the claim did not have a control group and it involved the use of multiple treatment modalities in addition to surgical spinal decompression.

    4. Respondent's flyer advertised that "clinical studies have shown non­surgical spinal decompression to be successful (good or excellent relief) in 86% of patients with herniated discs and degenerative joint disease without the side effects" and "75% of patients with facet arthrosis reported good to excellent results" after using the spinal decompression method.

    5. Respondent's advertisements further claimed that "through the combination of proven scientific principles, the latest technological developments and the brilliant work of a specialized team of physicians and medical engineers" this "space age technology" was now available.

    6. Respondent's advertisements further stated that spinal decompression equipment was "FDA approved" and that the DRX9000 was "successful with even the most severe cases, even when nothing else worked and even after failed surgery."

    7. Respondent's advertisement stated that the DRX9000 was "FDA Approved" when the DRX9000 has only been cleared by the FDA, not approved by the FDA.

26. The administrative complaints alleged that such representations violated one or more advertising laws specifically governing chiropractors:

    1. false, deceptive or misleading advertising in violation of § 460.413(1)(d), Florida Statutes;

    2. advertising which is misleading or deceptive because in its content or in the context in which it is presented it makes only partial disclosure of relevant facts in violation of Rule 64B2-15.001 and Rule 64B2- 15.001(2)(b), Florida Administrative Code; or

    3. advertising which creates false, or unjustified expectations of beneficial treatment or successful cures in violation of Rule 64B2-15.001(2)(c), Florida Administrative Code.

27. In many instances, the advertising cited as false or misleading by the Department was contained in ads published by physicians after Defendants had actual or at least constructive knowledge that their claims were false or misleading.

28. On information and belief, other medical and chiropractic boards throughout the nation have scrutinized similar advertising claims of its licensed physicians in connection with advertising of the DRX9000 or spinal decompression devices more generally. Penalties have been assessed against physicians using Defendants' advertising materials or materials provided through Defendants' agents.

29. On information and belief, numerous physicians contacted Defendants after learning about: (i) litigation filed against Defendants or other physicians, (ii) disciplinary proceedings, or (iii) denial of insurance or Medicare claims. Physicians inquired about whether the claims in the advertising were true or whether the claims were false or misleading. Physicians anxiously inquired about whether the advertising would subject them to liability or disciplinary proceedings pertaining to their licenses. On information and belief, Defendants unfairly delayed responding to inquiries in a forthright and appropriate manner to the detriment of numerous physician purchasers of the DRX9000.

Knowledge of Defendant Gibson and Defendant Exarhos

30. On information and belief, Defendants Gibson and Exarhos or either of them, knew or should have known that the DRX9000 advertising claims, specifically including claims relating to (i) FDA approved; (ii) discovered by NASA or NASA affiliated; (iii) 86% success clinically proven; and (iv) that the DRX9000 was patented by Defendants, were false or misleading when the claims were made or when the claims were disseminated through sales presentations, websites, press releases or marketing materials. In their positions as President and Vice President each of the individual Defendants has and has had the responsibility to conduct operations lawfully and to control and stop unlawful false, deceptive and unfair practices. Defendants Gibson and Exarhos actively participated in and controlled the daily operations of the Axiom Defendants.

31. On information and belief, Defendant Gibson received confirmation from the FDA of determinations made with respect to Defendant Axiom Worldwide, Inc.'s premarket notification of intent to market the device (pursuant to section 510(k), effectively clearing the DRX9000 (or its predecessor devices) for marketing. FDA's multiple letters addressed to Defendant Gibson throughout the years, commencing in 2001, specifically noted the regulation "Misbranding by reference to premarket notification (21 CFR 807.97)," which specifically states "[a]ny representation that creates an impression of official approval of a device because of complying with the premarket notification regulations is misleading and constitutes misbranding." (Emphasis added.) Defendants repeatedly advertised that the DRX9000 was FDA approved.

32. On information and belief, Defendant Gibson further received correspondence addressed to him in 2005 from NASA legal counsel cautioning against advertising the DRX9000 with language which shows NASA's direct or implied endorsement of the commercial product, contrary to NASA policy and regulation. NASA counsel's correspondence further cited specific objectionable examples of improper NASA references in conjunction with the DRX9000: "designed by a NASA engineer in conjunction with a chiropractor and an orthopedic surgeon," "New NASA Technology Proves 86% Success Rates. . . ," or "The DRX9000 was developed in part by NASA. . . ." Defendants emphasized a NASA development or expressly or impliedly represented a NASA affiliation.

COUNT I
DECEPTIVE AND UNFAIR TRADE PRACTICES
CONDUCT VIOLATING CHAPTER 501, PART II, FLORIDA STATUTES

33. The Attorney General sues Defendants, and alleges:

34. Plaintiff hereby incorporates by reference and realleges paragraphs 1 through 32 of the Complaint as if set forth completely herein.

35. Defendants, acting individually or in concert with others, have engaged in representations, acts, practices or omissions in trade or commerce which are material, and which are likely to mislead consumers acting reasonably under the circumstances; or Defendants have engaged in acts or practices in trade or commerce which offend established public policy and are unethical, oppressive, unscrupulous or substantially injurious to consumers.

36. Defendants willfully engaged in deceptive and unfair acts and practices in that Defendants knew or should have known that the methods, acts or practices alleged herein were deceptive, unfair, or unconscionable, or prohibited by law.

37. As set forth in paragraphs 1 through 32, Defendants have engaged in acts and practices that are unfair and deceptive acts and practices, in. the conduct of trade and commerce, in violation of the Florida Deceptive and Unfair Trade Practices Act, §§ 501.201, et seq., Florida Statutes (2009).

38. Unless Defendants are permanently enjoined from engaging further in the acts and practices alleged herein, the continued activities of Defendants will result in irreparable injury to the public, for which there is no adequate remedy at law.

COUNT II
VIOLATIONS OF CHAPTER 501, PART II, FLORIDA STATUTES,
THROUGH FALSE AND MISLEADING ADVERTISING
PROHIBITED BY §§ 817.06 AND 817.41

39. The Attorney General sues Defendants and alleges:

40. Paragraphs 1 through 32 are hereby realleged and incorporated by reference, as if fully set forth below.

41. Section 817.06(1), Florida Statutes, provides in part:

No person . . . shall, with intent to offer or sell or in anywise dispose of merchandise . , , service or anything offered by such person . . . directly or indirectly, to the public, for sale or distribution or issuance, or with intent to increase the consumption or use thereof, or with intent to induce the public in any manner to enter into any obligation relating thereto .. , knowingly or intentionally make, publish, disseminate, circulate or place before the public, or cause, directly or indirectly, to be made, published, disseminated or circulated or placed before the public in this state in a newspaper or other publication or in the form of a book, notice, handbill, poster, bill, circular, pamphlet or letter or in any other way, an advertisement of any sort regarding such . . . service or anything so offered to the public, which advertisement contains any assertion, representation or statement which is untrue, deceptive, or misleading,

42. Section 817.41(1) Florida Statutes, provides:

It shall be unlawful for any person to make or disseminate or cause to be made or disseminated before the general public of the state, or any portion thereof, any misleading advertisement. Such making or dissemination of misleading advertising shall constitute and is hereby declared to be fraudulent and unlawful, designed and intended for obtaining money or property under false pretenses.

43. As set forth in paragraphs 1 through 32 above, Defendants have made and disseminated materials to consumers that are untrue, deceptive, or misleading with regard to advertising and marketing of the DRX9000.

44. Defendants made and disseminated "misleading advertising" as defined by § 817.40(5), Florida Statutes, which are statements to and before the public, which are known, or through the exercise of reasonable care or investigation could or might be ascertained to be untrue or misleading, and which are so made or disseminated with the intent or purpose of selling services and to induce the public to enter into obligations relating to such services.

45. Defendants willfully engaged in the acts and practices alleged herein and knew or should have known at the time they advertised that their advertising and marketing materials contained assertions, representations and statements which are untrue, deceptive or misleading.

46. Pursuant to § 501.203(3)(c), Florida Statutes, a violation of Chapter 501, Part II, may be based upon "[a]ny law, statute, rule, regulation, or ordinance which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices."

47. Defendants, by disseminating false and misleading advertisements, violated §§ 817.06(1), Florida Statutes, and 817.41(1), Florida Statutes, and therefore engaged in deceptive and unfair acts and practices in trade or commerce, in violation of § 501.204(1), Florida Statutes, and are subject to civil penalties and equitable remedies as imposed therein.

48. Unless Defendants are permanently enjoined from engaging further in the acts and practices alleged herein, the continued activities of Defendants will result in irreparable injury to the public for which there is no adequate remedy at law.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, State of Florida, Department of Legal Affairs, Office of the Attorney General, respectfully requests that this Court:

    1. Grant a temporary and permanent injunction against Defendants, their officers, agents, servants, employees, attorneys and those persons in active concert or participation with them who receive actual notice of this injunction, prohibiting such persons from violating the provisions of Chapter 501, Part II, Florida Statutes, § 817.06(1), Florida Statutes, and § 817.41(1), Florida Statutes, as specifically alleged above and any similar acts and practices.

    2. Award restitution to consumers for the acts and practices of Defendants in accordance with § 501.207(3), Florida Statutes.

    3. Award as disgorgement all revenue and all interest or proceeds derived therefrom by Defendants as a result of transactions with consumers, generated as a result of the unconscionable, unfair and deceptive practices as set forth in this complaint, to the Attorney General for deposit into the General Revenue Fund.

    4. Assess against Defendants civil penalties in the amount of Ten Thousand Dollars ($10,000.00), pursuant to § 501.2075, Florida Statutes, or Fifteen Thousand Dollars ($15,000.00) in cases involving senior citizens or handicapped persons, pursuant to § 501.2077(2), Florida Statutes, for each violation of Chapter 501, Part II, Florida Statutes.

    5. Award costs to Plaintiff for all expenses in bringing and maintaining this action, including reasonable attorney's fees pursuant to § 501.2105, Florida Statutes.

    6. Award actual damages to all consumers who are shown to have been injured in this action, pursuant to § 501.207(1)(c), Florida Statutes.

    7. Waive the posting of a bond by Plaintiff in this action.

    8. Grant such other and further relief as this Honorable Court deems just and proper, including, but not limited to, all other relief allowable under § 501.207(3), Florida Statutes.

Respectfully submitted,

BILL McCOLLUM
ATTORNEY GENERAL

_________________________________________
J ULIA A. HARRIS
SENIOR ASSISTANT ATTORNEY GENERAL
Florida Bar No. 884235
Department of Legal Affair
Concourse Center 4
3507 East Frontage Road, Suite 325
Tampa, Florida 33607
(813) 287-7950 (Telephone)
(813) 281-5515 (Facsimile)

This page was posted on December 3, 2009.

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