Professional Documents
Culture Documents
Velva L. Price
District Clerk
Travis County
CAUSE NO .-D-1-GN-19-001015
-- -- -
D-1-GN-19-001015
Irene Silva
e
THE ST A TE OF TEXAS , § IN THE DISTRICT COURT OF
ic
Plaintiff, §
Pr
§
V. § TRAVIS COUNTY, T EXAS
§
L.
WE BRAND BETTER, LLC, LATITUDE §
SOLUTIONS & CONSUL TING LLC, §
a
SAHIL MIGLANI, and HARNEET OBEROI, §
lv
Defendants. § ---
200th J UDIC IAL DISTRICT
Ve
PLAINTIFF'S EX PARTE APPLICATION FOR A
TEMPORARY RESTRAINING ORDER AND ASSET FREEZE
k
er
TO THE HONORABLE JUDGE OF SAID COURT:
Cl
1. Plaintiff, STATE OF TEXAS , acting by and through Attorney General of Texas, KEN
ct
PAXTON, has filed Plaintiff's Original Petition pursuant to§ 17.47 of the Texas Deceptive
tri
Trade Practices-Consumer Protection Act, Tex. Bus. & Com. Code § 17.41 et seq.
is
.D
(hereafter the " DTPA") . Plaintiff's Original Petition seeks civil penalties, redress for
2. Pursuant to DTPA § l 7.47(d), Plaintiff hereby petitions this court for immediate relief by
av
allowing the transfer, removal, or withdrawal from any financial institution or from
al
the jurisdiction of this Court any money, stocks, bonds, assets, notes, equipment,
ci
the possession or custody of, standing in the name of, or claimed by any of the
Defendants, insofar as such property relates to, arises out of, or is derived from the
e
business operations of Defendants, without further order of the Court;
ic
Pr
B. Temporarily requiring third parties holding Defendants' assets to (i) retain within
L.
their control such assets, (ii) prohibit the withdrawal , removal, assignment, transfer,
a
pledge, hypothecation, encumbrance, disbursement, dissipation, conversion, sale,
lv
Ve
liquidation, or other disposal of Defendants' assets, funds, accounts, or other
property, and (iii) produce a current balance sheet and the previous six account
k
er
statements for each account they locate, without further order of the Court;
Cl
C. Restraining Defendants from transferring, concealing, destroying, or removmg
ct
tri
from the jurisdiction of this Court any books, records, documents, or other written
is
service;
Un
e
security number, other identifyi ng information, or any data that enables
ic
access to the account of any person;
Pr
1v. Passing off a Defendant's services as those of another party;
L.
v. Causing confusion or misunderstanding as to the approval or certification
a
lv
of any of Defendants' services, including, but not limited to, representing,
Ve
directly or by implication, that Defendants' services are approved by,
k
certified by, or otherwise authorized by Microsoft or any other third party;
er
Cl
v1. Causing confusion or misunderstanding as to any Defendant's affiliation,
ct
tri
not limited to, representing, directly or by implication, that one of
is
ingredients, uses, or benefits which they do not have, including but not
Tr
limited to:
y
hacker, or other problem with a computer that does not exist or that is
lc
not removed;
ia
fic
a Defendant; or
Un
e
vn1. Representing, directly or by implication, that any Defendant has a
ic
sponsorship, approval , status, affiliation, or connection which he does not
Pr
have;
L.
1x. Representing that services are of a particular standard, quality, or grade, if
a
lv
they are of another, including but not limited to:
Ve
a. Representing, directly or by implication, that any computer command
k
that a Defendant executes or test a Defendant runs is effective in
er
Cl
detecting viruses, malware, hackers, or other issues with a computer if
it is not; or
ct
tri
b. Representing, directly or by implication, that any computer command
is
not;
is
x. Making any false or misleading statements of fact concerning the need for
av
repaired ;
ia
fic
e
c. Misrepresenting that an "error" or "warning" found in a user' s Event
ic
Viewer is evidence of a virus, the presence of hackers, unauthorized
Pr
access to a computer, or other problem needing to be repaired ;
L.
d. Representing that one of the Defendants has detected a virus or other
a
lv
problem with a person ' s computer when it has not;
Ve
e. Representing that a computer has a virus, has been hacked, or is
k
otherwise in need of repairs if there is no scientifically reliable evidence
er
Cl
to substantiate such fact ;
ct
tri
any work or service that it has not performed, including but not limited to:
is
known at the time of the transaction with the intent to induce the consumer
Un
into a transaction into which the consumer would not have entered had the
-~ - - - ~- - - - - - - -
information been disclosed ; and
e
xv. Collecting or attempting to collect any fee or payment for a service that was
ic
marketed through any method or means that would violate this injunction;
Pr
L.
E. Granting expedited discovery such that Plaintiff may conduct telephonic, oral, and
a
written depositions of parties and witnesses and may request the production of
lv
Ve
documents on reasonable shortened noticed, prior to any scheduled temporary
k
er
F. Waiving the filing requirements for business records and the associated custodial
Cl
affidavits for purposes of any temporary injunction hearings.
ct
tri
3. As further explained in Plaintiff's Brief in Support of Temporary Restraining Order and
is
Asset Freeze which is being filed contemporarily with this Application, ex parte relief is
.D
Original Petition and the supporting affidavits attached to this Application, and
Tr
Court, Defendants will continue to violate the laws of the State of Texas and cause
op
immediate, irreparable injury, loss, and damage to the State of Texas and to the
lc
general public;
ia
fic
B. Despite the numerous complaints that have been filed against Defendants and the
of
fact that Defendants have "F" ratings with the Better Business Bureau under
Un
e
of Temporary Restraining Order and Temporary Injunction is therefore necessary
ic
Pr
to prevent continuing harm prior to final trial ;
L.
C. Defendants are acquiring large amounts of money through their deceptive scheme,
a
and much of the money collected is being quickly transferred to foreign bank
lv
Ve
accounts, primarily in India. Defendants' assets are therefore subject to dissipation
and secretion and should be frozen pending final trial so consumer restitution can
k
er
be made and full and final relief can be awarded at final trial. Tex. Bus. & Com.
Cl
Code§ 17.47(d); and
ct
tri
D. Plaintiff has reason to believe that Defendants will evade service of process and/or
is
destroy, secrete, or remove evidence. Defendants Miglani and Oberoi are both
.D
believed to be citizens of India and continue to have friends and family in India.
Co
India.
is
av
4. This petition and application for Temporary Restraining Order is supported and verified by
Tr
Exhibit I : Affidavit of Michael O' Leary, Systems Analyst with the Office of the Texas
Attorney General
Exhibit 2: Affidavit of Joshua .J. Barga'r, Investigator for IP Services, Inc.
al
Exhibit 3: Affidavit of Jeff Lilleskare, Senior Risk Manager for Consumer Services,
ci
e
ic
Exhibit 9: Affidavit of Gary Adkins, Investigator VI with the Office of the Texas
Attorney General
Pr
L.
WHEREFORE, Plaintiff hereby petitions the Court and requests that the Court issue a Temporary
a
lv
Restraining Order, without requiring a bond as provided by DTPA § l 7.47(b), as set out above and
Ve
in Plaintiffs Original Petition.
k
er
Cl
ct
Respectfully submitted,
tri
KEN PAXTON
is
JEFFREY C. MA TEER
First Assistant Attorney General
Co
BRANTLEY ST ARR
Deputy First Assistant Attorney General
is
av
DARREN MCCARTY
Deputy Attorney General for Civil Litigation
Tr
PAULL. SINGER
Division Chief, Consumer Protection Division
py
co
al
brad.schuelke@oag.texas.gov
fi
LUCAS H. WOLLENZIEN
of
e
Facsimile: (512) 473-8301
ic
ATTORNEYS FOR PLAINTIFF
Pr
L.
a
lv
Ve
k
er
Cl
ct
tri
is
.D
Co
is
av
Tr
py
co
al
fi ci
of
Un
e
I hereby certify that a true and correct copy of the foregoing Plaintfff's Ex Parte Application for
ic
a Temporary Restraining Order and Asset Freeze was served via certified mail , return receipt
requested, as indicated below on the 27 th day of February 2019.
Pr
L.
a
rad Schu'elke c
lv
Ve
We Brand Better, LLC
Through The Company Corporation
k
2711 Centerville Road, Ste 400
er
Wilmington, DE 19808
Cl
Latitude Solutions and Consulting LLC
Through The Fein Law Firm P.C.
15455 Dallas Parkway, Ste. 1225
ct
tri
Addison, TX 75001
is
Sahil Miglani
.D
Harneet Oberoi
1416 Guthrie Ln
is
Allen, TX 75013
av
Tr
py
co
al
fi ci
of
Un
e
THE ST A TE OF TEXAS , § IN THE DISTRICT COU RT O F
ic
Plaintiff, §
Pr
§
V. § TRAVIS COUNT Y, TEXAS
§
L.
WE BRAND BETTER, LLC, LATI TUDE §
SOLUTIONS & CONSUL TING LLC, §
a
SAHIL MIGLANI , and HARNEET OBEROI , §
lv
Defendants. § 200th JUDICIAL DISTRICT
Ve
PLAINTIFF'S BRIEF IN SUPPORT OF TEMPORARY RESTRAINING ORDER
AND ASSET FREEZE
k
er
Plaintiff, State of Texas, submits this brief in support of its Ex Parte Application for a
Cl
Temporary Restraining Order (" TRO") and Asset Freeze. Defendants operate an elaborate tech
ct
support scam in which they use deceptive advertisements and misleading "diagnostic tests" to
tri
scare consumers - many of whom are elderly - into purchasing unnecessary and worthless
is
.D
computer repairs. Defendants charge consumers hundreds, sometimes thousands, of dollars, and
often victimize consumers multiple times. Since 2015 , consumers have lost more than eleven
Co
Plaintiff has sued Defendants pursuant to the Deceptive Trade Practices Act, Tex. Bus. &
av
Com. Code § 17.41 et seq. ("DTPA"), which permits the Consumer Protection Division of the
Tr
Attorney General ' s office ("CPD") to bring an action to restrain, including by temporary
py
restraining order, the use of any method, act, or practice declared to be unlawful by the DTP A
co
Plaintiff seeks an ex parte TRO in order to freeze Defendants ' assets and immediately halt
fi ci
their ongoing unlawful conduct, which has caused millions of dollars in consumer harm. T he relief
of
declarations from: four of Defendants' victims ; four investigators, two of whom conducted
undercover transactions with Defendants; and a representative from Microsoft. See Plaintiffs
e
Original Petition and its Ex Parte Application for a Temporary Restraining Order and Asset Freeze
ic
Pr
and supporting affidavits and exhibits, which are incorporated herein for all purposes.
Defendants' pattern of deceit, combined with their ongoing practice of transferring funds
L.
to foreign bank accounts, suggests that they would hide or dissipate assets if they received notice
a
lv
of this action. The requested relief, including an asset freeze, is necessary to preserve the Court' s
Ve
ability to provide effective final relief to Defendants ' thousands of victims.
k
Defendants' Deceptive Tech Support Scam
er
Cl
Defendants purport to provide on-demand technical support and trouble-shooting of all PC
related issues. In fact, Defendants engage in deceptive scare tactics designed to. convince
ct
tri
vulnerable or technologically challenged consumers to pay hundreds or thousands of dollars for
is
unnecessary technical support services. Defendants typically initiate contact with a consumer
.D
through a deceptive pop-up ad. The ad attempts to trick the consumer into calling Defendants'
Co
boiler room. Defendants misrepresent their affiliation with Microsoft or other legitimate
is
technology company and scare the consumer with claims that the consumer' s computer is infected
av
with viruses, malware, or adware, or has otherwise been hacked . Defendants then charge the
Tr
Lead Generation
co
Defendants typically initiate contact with a consumer using pop-up internet ads. These ads
al
are designed to lead the consumer to believe that he or she is receiving a security alert from either
fi ci
of
Un
e
represent, directly or by implication, that calling the number displayed in the ads will put the
ic
Pr
consumer in contact with a representative from Microsoft or other reputable technology company,
L.
Defendants' pop-up ads are designed not only to deceive the consumer regarding their
a
lv
source, but also to scare the consumer. The pop-up ads often represent that malware or a virus has
Ve
been detected on the consumer's computer. 3 In reality, Defendants' pop-ups are advertisements
k
with no technical or diagnostic value. In fact, there is no feature built into the Windows operating
er
Cl
systems that will , after detecting a security problem, generate a pop-up message directing the user
ct
tri
Defendants' pop-up ads often include small pieces of malicious code hidden within the
is
.D
1
Exhibit to Plaintiffs Ex Parte Application for a Temporary Restraining Order and Asset Freeze ("PX") 4,
Affidavit of Charles Ca mpenni (''Campenni Affidavit"), 18, Image I ; PX 5, Declaration of Jonathan Thomas
Co
("Thomas Declaration''), 11 2-3, I 0, Exhibits I, 4 (Consumer, on two separate occasions, received a pop-up that
included the Microsoft logo and said , " Call Windows Technical Support." ); PX 6, Affidavit of Kim Martindale
("Martindale Affidavit''), 12 ("[A] bright colored pop-up message purporting to be from Microsoft filled the whole
is
screen.").
2
PX 4, Campenni Affidavit, 1 8, Image I (The website tab is titled Microsoft Office Support, includes the Microsoft
av
logo, and says, "Call for support: 1-855-203-6745." ); PX 5, Thomas Declaration, 112-3, I 0, Ex hibits I, 4 (The pop-
up messages purported to come from ·'support.Windows.com ," the ads included the Microsoft logo, and the ads
Tr
instructed Mr. Thomas to, ·'Ca ll Windows Technical Support" at two different toll-free numbers.); PX 6, Martindale
Affidavit, 1 2-3 (Consumer received a message purporting to be from Microsoft which included a toll-free number
to call ; consumer thought she was calling Microsoft.); PX 7, Affidavit of Robert Levitt ("Levitt Affidavit"), 1 2 ("I
py
received what I would call a ' Red Screen of Death ,' stating that my laptop had been compromised by a serious
infection. It further told me not to turn off my computer or to proceed to any other websites, but to cal l Microsoft to
co
viruses are well known for identity and credit card theft.") ; PX 6, Martindale Affidavit, 12 ("An audio message was
playing saying that our computer was infected and warning us not to exit or turn off the computer or else all of our
ci
personal data may be destroyed .''); PX 7, Levitt Affidavit, 12 (" I rece ived what I would call a ' Red Screen of
fi
Microsoft Corp. (" Lilleskare Affidavit" ), 1 5 ('' Windows operating system does not use pop-up windows to advise
consumers to phone Microsoft related to corrupted or infected PCs. " ).
Un
e
consumer from closing the pop-up ad or accessing any other tabs or programs.5 These practices,
ic
sometimes referred to as " browser hijacking" or "malvertising," often render computers unusable,
Pr
especially for consumers with minimal technical knowledge. At the same time, the pop-up ad often
L.
warns the consumer that he or she will incur permanent damage to the computer, lose all the
a
lv
consumer's data, or suffer other dire consequences if the computer is turned off. 6
Ve
It is not surprising that consumers who suddenly experience an inoperable computer, while
k
simultaneously receiving an alarming message from a trusted source that warns of the imminent
er
Cl
destruction of their hard drive or other dire consequences, often feel they have no choice but to
ct
tri
The Sales Call
is
Once a consumer responds to Defendants ' pop-up ad by calling the listed toll-free number,
.D
Defendants' telemarketer delivers a sales pitch designed to convince the consumer that the
Co
consumer's computer is in urgent need of repair, even though Defendants have not detected an
is
actual problem.
av
Tr
py
co
5
PX 6, Martindale Affidavit, 12 (consumer was unable to click out of the message) ; PX 8, Affidavit of Denise
Gordon (·'Gordon Affidavit" ), 1 2 ("I tried to close the tab, but it would not close and my computer was complete ly
locked up so that I could not do anything on the computer." ).
al
6
PX 5, Thomas Declaration, 11 2-3 , I 0, Exhibits 1,4 (the pop-ups stated, "Please Do Not Shut Down or Reset Your
Computer. The following data might be compromised if you continue: I. Passwords, 2. Browser History, 3. Credit
ci
Card Information, 4. Loca l Hard Disk Fi les. These viruses are well known for identity and credit card theft. Further
fi
action on this computer or any other device on yo ur network might reveal private information and involve serious
risks.'·); PX 6, Martindale Affidavit, 2 (consumer was warned not to exit or turn off the computer or else a ll of
of
their personal data may be destroyed) ; PX 7, Levitt Affidavit ( consumer told not to turn off his computer or to
proceed to any other websites).
Un
e
In an effort to gain a consumer' s trust, Defendants' sales call continues the deception that
ic
Pr
Defendants are affiliated with Microsoft, Apple, or other reputable technology company. In some
cases, Defendants' agents answer the phone using the legitimate company' s name. 7 Other times,
L.
they will reference the name in the course of their conversation with the consumer or respond
a
lv
affirmatively if asked whether they are the company. 8
Ve
Defendants' affiliation and certification claims are a crucial component of their scheme.
k
They are also categorically false. Defendants are not affiliated with Microsoft, nor are they
er
certified to provide technical support services for Microsoft products. 9
Cl
Defendants Misrepresent That Malware Was Detected
ct
tri
Before Defendants have ever seen or connected to a consumer' s computer, Defendants
is
misrepresent that they have detected malware on the consumer' s computer. Defendants'
.D
telemarketers sometimes use the mere presence of Defendants' pop-up advertisement to convince
Co
the consumer that his or her computer is compromised. 10 In reality, Defendants know nothing
is
about the security of a consumer' s computer at the time the consumer responds to Defendants'
av
pop-up ad.
Tr
y
op
7
PX 5, T homas Declaration, 14 ("The phone was answered by a man with a Middle Eastern or Indian accent. He
lc
answered the phone, ' Windows security ' or something similar. ").
8
PX 7, Levitt Affidavit, 1 3 ("'I called the telephone number that appeared on the screen and a person with an Indian
accent answered the phone. I asked , ' Is this Microsoft? ' to which the person who answered the phone responded ,
ia
10
PX 4 , Campenni Affidavit, 1 9 (" I exp lained to Ravi that I had an error message on my computer and that I was
told to call thi s number. After explaining that he was sure it was a Microsoft security warning and that my system
of
was probably infected with a harmful virus, he reassured me that he wou ld check it out." ); PX 5, Thomas
Declaration, 1 4 (" I explained what had happened to my wife and he said I may be a victim of ' Torpig spyware. " ").
Un
e
Once Defendants have gained a consumer' s trust by misrepresenting their affiliation with
ic
Pr
a legitimate technology company and scared the consumer with initial misrepresentations
regarding the security of the consumer' s computer, Defendants seek to obtain remote access to the
L.
consumer' s computer. Defendants typically represent that they need access to determine the full
a
lv
extent of the consumer' s problem. 11 Defendants usually gain access to the consumer' s computer
Ve
by directing the consumer to a website through which Defendants' telemarketers can make a
k
remote access. 12
er
Cl
By gaining remote access, Defendants are able to control a consumer's computer. Among
other things, Defendants can view the computer screen, move the cursor, enter commands, run
ct
tri
applications, and access stored information. 13 At the same time, the consumer can generall y see
is
After gaining control of the consumer' s computer, Defendants represent that they are
Co
running a series of diagnostic evaluations. But the supposed "diagnostics" Defendants run are
is
nothing more than a high-pressured sales pitch designed to scare the consumer into believing that
av
his or her computer is corrupted, hacked, or otherwise compromised. Defendants often use
Tr
standard system information tools such as the System Configuration tool , the Event Viewer, or the
y
Microsoft Command Prompt, each of which displays certain information about the consumer' s
op
lc
11
PX 5, Thomas Declaration, ,i 5 (" He then asked to do a screen share because he needed to install a ' Network
Firewall Security ' on my devices.'"); PX 6, Ma1tindale Affidavit, ,i 3 (" The technician, who gave the name ' Dan
ia
Wil son ,' said th at he needed to take control of our computer to check for trojan s." ); PX 7, Levitt Affidavit, il 4 ("' He
fic
my laptop.").
13
PX 4, Campenni Affidavit, ,i 11.
Un
e
way Defendants use such tools is misleading and provides no evidence that a consumer' s computer
ic
Pr
has an issue.
L.
exemplify the deceptive nature of Defendants' "diagnostic" tests. In both cases the investigator
a
lv
posed as a lay consumer and used a computer running a clean version of the Windows operating
Ve
system free of any viruses, malware, or security problems. Nevertheless, in each case, Defendants'
k
telemarketers claimed to discover unmistakable evidence that the user' s computer or network was
er
Cl
significantly compromised.
ct
tri
Defendants' telemarketer used a variety of tools in an effo1i to convince Mr. Campenni that his
is
computer was infected. For example, Defendants opened Mr. Campenni ' s Event Viewer utility, a
.D
Windows utility that displays a log of past actions on a computer. Event Viewer usually shows a
Co
large number of error and warning messages that result from the normal functioning of the
is
Windows operating system. Nevertheless, Defendants represented that Mr. Campenni ' s Event
av
Viewer identified 1,278 "infections" designed to "monitor [Mr. Campenni's] activity and to steal
Tr
Defendants next navigated to a screen that displayed the results from the Netstat utility, 15
co
a network utility used for checking the status of internet connections. As with all Netstat results,
al
the results showed a column that displayed the " Local Address" and a column that displayed the
fi ci
of
14
I d. 1 15- 16.
15
I d. 1 18.
Un
e
remotely connected to a user' s computer it will display foreign addresses, Defendants circled the
ic
Pr
"Foreign Address" column and represented that "clicking on some wrong link" had resulted in the
"third-party overseas connection." 17 While the Netstat results were perfectly normal and did not
L.
show the presence of any virus, malware, or hackers, Defendants represented that it was Mr.
a
lv
Campenni ' s biggest problem. 18
Ve
After misrepresenting Mr. Campenni ' s Netstat results, Defendants went back to the Event
k
Viewer and switched from the "system" tab to the "security" tab, pointing out all of the "Special
er
Logon" entries. 19 Defendants represented that the foreign connections were what allowed the
Cl
special logons. 20 In fact, the "special logon" designation just indicates a log-on by an account
ct
tri
assigned administrator-equivalent user rights. 21
is
Defendants also used the Microsoft System Configuration Utility, a tool for trouble
.D
shooting the Windows startup process, to convince Mr. Campenni that his computer was
Co
infected. 22 After opening the utility, also known as "misconfig," Defendants caused the utility
is
window to show only the " stopped" Microsoft services and explained that the foreign connections
av
had stopped the most important services. 23 In fact, all Windows installations come with services
Tr
py
co
16 Id.
al
11 Id.
18 ld.iJl8-19.
ci
19 ld.iJl9.
20 Id.
fi
2 1 Id.
of
22 Id. ,r 21.
23 Id.
Un
e
Campenni 's computer did not reveal any problems with his computer. 24
ic
Pr
Despite the fact that Mr. Campenni was using a computer with no viruses, malware, or
security problems of any kind, Defendants represented that Mr. Campenni would require a "Level
L.
5 Windows technician" to resolve all of his problems. Defendants further sought to charge him
a
lv
from $99.99 to $399.99 depending on the level of service selected. 25
Ve
Microsoft's investigator, Joshua Bargar, had a similar experience. After gaining remote
k
access to his computer, Defendants downloaded and ran a free software program that supposedly
er
scanned the computer for spyware and other malware. 26 The program supposedly detected 24
Cl
threats on Mr. Bargar's computer, which were removed by Defendants' technician.27 Defendants
ct
tri
next ran the "tree" command. 28 The tree command produces a graphic display of all of the files
is
and sub-files in the current directory. When the tree command finished running, the line "Sexual
.D
activity observed under thi s network" appeared on the command prompt. 29 The only way such a
Co
line could have appeared is if Defendants typed "Sexual activity observed under this network"
is
while the command was running and the list of files was scrolling across the screen,
av
Defendants also ran the Netstat utility. 30 Like with Mr. Campenni, Defendants pointed out
Tr
to Mr. Bargar the listing of "foreign" connections. 3 1 Defendants explained to Mr. Bargar that the
py
co
24 Id.
al
25
Id. ~ 22, 30.
26
PX 3, Bargar Affidavit,~ 5, Exhib it A, pg. 7-9.
ci
21 Id.
28
Id. ~ 5, Exhibi t A, pg. I 0.
fi
29 Id.
of
30
Id. at Exhibit A, pg. I I.
31
Id. at Exh ibit A, pg. 12.
Un
e
computer ranging from $287.99 to $399.99. 33
ic
Pr
Defendants have made similar deceptive and alarming claims while "diagnosing"
consumers' computers. For example, one consumer explained that Defendants "then supposedly
L.
ran some tests and diagnostics on the laptop computer. .. I did not understand everything he was
a
lv
doing. At some point he showed me a document that appeared to have usernames and passwords,
Ve
which he said hackers would have access to. " 34
k
Defendants' misrepresentations and scare tactics are particularly troubling considering that
er
Cl
many of their victims are elderly consumers.
ct
tri
After convincing a consumer through deception that his or her computer or network is
is
compromised, Defendants represent that they can fix the computer immediately. Defendants'
.D
websites often offer up to four plans, ranging in price from $69.99 to $499.99. In practice,
Co
Defendants appear to charge as much as possible. 35 Defendants typically accept payment either
is
Defendants
Tr
Defendants consist of two individuals and the limited liability companies they set up to
y
perpetrate this elaborate scheme to deceive consumers in Texas and throughout the United States.
op
lc
32 Id.
ia
33 Id.
fic
34
PX 5, Thomas Declaration, 1 6.
35
PX 8, Affidav it of Denise Gordon ("'Gordon Affidav it"), 1 5 (Consumer was charged $599.); PX 6, Martinda le
Affidavit, 16 (Consumer was charged $698 plus an additional charge of$9.99.); PX 7, Levi tt Affidavit, 16
of
(Consumer was initially quoted $400, but ultimately negotiated the fee down to $75.); PX 9, Affidavit of Gary
Adkins ("Adkins Affidavit"), 11 11 (h), I 2(f), 19 (Consum ers were charged up to $2999.97.).
Un
e
avoid prosecution. In particular, Defendants conspire with Defendant Oberoi ' s brother-in-law,
ic
Abhinandan Wahi, and another friend , Amit Khurana.
Pr
We Brand Better, LLC
L.
We Brand Better, LLC (" We Brand Better") was registered with the Delaware Department
a
lv
of State: Division of Corporations, in February 2015 , and remains an active limited liability
Ve
company.36 The initial members of We Brand Better are Sahil Miglani and Abhinandan Wahi. 37
k
We Brand Better operated under the names My Expert Advise and My Tech Advise. 38
er
Cl
In March 2015 , We Brand Better opened a merchant payment processor account with
Electronic Merchant Systems. 39 Since then, We Brand Better has processed transactions totaling
ct
tri
more than $7 million. 40 We Brand Better also established at least three bank accounts at Bank of
is
America and Wells Fargo Bank. From June 2015 to March 2016, Defendants deposited over 250
.D
consumer checks into its Bank of America accounts, totaling over $75,000. 41
Co
We Brand Better established a virtual office and/or private mailbox at 548 Market St.
#32574, San Francisco, CA 94104. 42 We Brand Better also opened an account with Vonage
is
av
Holdings, a provider of Voice over Internet Protocol (VoIP) telephone service. 43 The account was
Tr
assigned at least nine phone numbers, including phone numbers used on the following websites
py
36
PX 9, Adkins Affidavit, 1 7.
al
37 Id. 1 8.
38
Id. 1 I I a, I I f.
ci
39 Id. 1 I I.
40 Id.
fi
.J lld. 1 19.
of
42
Id. 1 29.
43
Id. 1 30.
Un
e
We Brand Better is the entity that deceived and charged Mr. Robert Levitt,45 Ms. Kim
ic
Martindale,46 and Ms . Denise Gordon. 47 The Federal Trade Commission and the Texas Attorney
Pr
General ' s Office have received more than 300 complaints specifically naming We Brand Better,
L.
LLC, My Expert Advise, or My Tech Advise. 48
a
lv
Latitude Solutions & Consulting LLC
Ve
Latitude Solutions & Consulting LLC (" Latitude") was registered with the Texas Secretary
k
of State on April 7, 2016, by its original managing member, Harneet Oberoi. 49 On October 17,
er
2016, Latitude filed an assumed name certificate for the name "MTE Solutions US." 50 On March
Cl
2, 2017, Latitude filed an assumed name certificate for the name " My PC Wizard.'' 51
ct
tri
In May 2016, Latitude opened a merchant payment processor account with Electronic
is
Merchant Systems. 52 Latitude was referred to Electronic Merchant Systems by We Brand Better. 53
.D
Since May 2016, Latitude has processed transactions totaling more than $3.7 million through
Co
Electronic Merchant Systems. 54 Latitude has also set up a bank account at Comerica Bank. 55 From
is
April 2017 to February 2018 , Latitude deposited more than a thousand consumer checks into its
av
Tr
44 Id.
45
PX 7, Levitt Affidavit,~ 8.
py
46
PX 6, Martindale Affidavit,~ 4.
47
PX 8, Gordon Affidavit,~ 6.
co
48
PX 9, Adkins Affidavit, ~ 32. This includes alternative spellings that are clearly related to We Brand Better, but
does not include complaints listin g We Brand Better' s telephone numbers but not identifing We Brand Better or one
of its DB As .
al
49 Id. ~ 9.
50 Id.
ci
51 Id.
52
Id. ~ 12.
fi
5., Id.
of
54 Id.
55
Id. ~ 16.
Un
e
Latitude established a virtual office and/or private mail box at 1400 Preston Rd, Ste 400,
ic
Plano, TX 75093. 57 Latitude, using the names MTE Help and MTE Solutions, was the entity that
Pr
deceived and charged Mr. Jonathan Thomas. 58 The Federal Trade Commission and the Texas
L.
Attorney General's Office have received more than 175 complaints specifically naming Latitude
a
lv
Solutions & Consulting LLC, MTE Solutions, or MTE Help. 59
Ve
Sahil Miglani
k
Defendant Sahil Miglani directly controls and manages We Brand Better. He provides
er
Cl
substantial assistance in the operation of the company, and he conspires with other persons and
entities, including Abhinandan Wahi and Amit Khurana, to execute the deceptive scheme.
ct
tri
Defendant Miglani is one of the two original members of We Brand Better. 60 Less than a
is
month after forming the company, Defendant Miglani applied for a merchant account with
.D
Miglani listed himself as a 51 % owner and used his residential address as the business address. 62
is
Defendant Miglani routinely communicated with Electronic Merchant Systems and made changes
av
to the account. For example, Defendant Migliani changed the mailing address for We Brand Better
Tr
at least three times, changed the phone number for We Brand Better at least one time, and changed
py
co
56 Id. , 19.
al
57
Id. 1 28.
58
PX 5, Thomas Declaration, 1 9.
ci
59
PX 9, Adkins Affidavit, 1 32 . This includes alternative spe llings that are clearly related to Latitude, but does not
fi
include complaints listing Latitude 's telephone numbers but not identifying Latitude or one of its DBAs.
60 Id. 1 8.
of
61
Id. 1 11.
62 Id.
Un
e
also changed the bank account to which funds processed by the merchant account were deposited
ic
in April 2016. 64 From May of 2015 to September of 2018, the account processed net sales in excess
Pr
of $11 million. 65 Further, between July 2017 and February 2018, Defendant Miglani received
L.
copies of over 500 chargeback requests from Electronic Merchant Systems. 66
a
lv
Defendant Miglani also established and/or has signatory authority on at last three bank
Ve
accounts used to facilitate Defendants' scheme. 67 Consumers ' electronic checks were deposited
k
into these accounts in addition to funds processed through Electronic Merchant Systems. 68
er
Cl
Defendant Miglani routinely initiated and/or authorized wire transfers from these bank accounts
ct
tri
Defendant Miglani was also the applicant for Defendants ' private mail box in San
is
Francisco. 70 Defendant Miglani received at that box notices of charge backs and complaints from
.D
the BBB, the New York Department of State, Division of Consumer Protection, and the Attorneys
Co
General of Minnesota and Pennsylvania. 71 Defendant Miglani also paid for the Vonage Holdings
is
account to which at least three toll-free telephone numbers used by Defendants were assigned. 72
av
Those telephone numbers were prominently displayed on the following websites controlled by
Tr
63 Id.
64 Id.
65 Id.
al
66 Id.
67
Id. 1 15.
ci
68
Id. 1 19.
69 Id. 1 27.
fi
70
Id. 1 29.
of
71
Id. 1 38.
72
Id. 1 30.
Un
e
Harneet Oberoi
ic
Pr
Defendant Harneet Oberoi directly controls and manages Latitude. He provides substantial
assistance in the operation of the company, and he conspires with other persons and entities,
L.
including his brother-in-law Abhinandan Wahi and friend Amit Khurana, to execute the deceptive
a
lv
scheme.
Ve
Defendant Oberoi is the sole member of Latitude, 74 and filed two assumed name
k
certificates for the company. 75 Approximately a month after forming the company, Defendant
er
Oberoi applied for a merchant account with Electronic Merchant Systems on behalf of Latitude. 76
Cl
On the application, Defendant Oberoi listed himself as 100% owner and used his residential
ct
tri
address as the business address. 77 From May 2016 to February 2018, the account processed net
is
Defendant Oberoi also established and has sole signatory authority on Latitude ' s Comerica
Co
Bank account, which was used to facilitate Defendants' scheme. 79 Consumer's electronic checks
is
were deposited into this account in addition to funds processed through Electronic Merchant
av
Systems. 80 As noted above, such deposits were in excess of $650,000.00 in just eleven months. 81
Tr
Between June 2016 and February 2018, Defendant Oberoi wrote at least 29 checks from Latitude ' s
py
co
13 Id.
74 Id. ,i 9.
al
1s Id.
76 ld.i[ l2 .
ci
n Id.
18 Id.
fi
79
Id. i[ 16.
of
80
Id. i[ 19.
8 1 Id.
Un
e
and/or authorized wire transfers from Latitude ' s Comerica account to accounts in India belonging
ic
to his brother-in-law and companies controlled by his brother-in-law. 83 From June 2016 to
Pr
December 2017, such wire transfers exceeded $1 million. Defendant Oberoi similarly initiated
L.
and/or authorized wire transfers totaling $780,000 from Latitude ' s Comerica account to an Indian
a
lv
bank account in the name "We Brand Better." 84
Ve
Defendant Oberoi was also the applicant for Defendants' private mail box in Plano. 85
k
Defendant Oberoi also received copies of complaints from the BBB and notice that the BBB had
er
Cl
identified a pattern of complaints against the business and was concerned about the business'
conduct. 86 Nevertheless, Defendant Oberoi continued to direct and participate in the same
ct
tri
deceptive conduct.
is
Argument
.D
ongoing DTPA violations. Plaintiff requests that the Court enjoin Defendants from their unlawful
is
conduct and freeze Defendants' assets to preserve them for restitution. As set forth below, the
av
The DTPA provides CPD with explicit authority to seek and obtain injunctive relief, stating
co
in relevant part:
al
(a) Whenever the consumer protection division has reason to believe that
ci
82
Id. 1 20.
83
Id. 11 21 -22.
fi
84
Id. 23.
of
85
Id. 1 28.
86
Id. 11 34-37.
Un
e
in the public interest, the division may bring an action in the name of the state
ic
against the person to restrain by temporary restraining order, temporary
Pr
injunction, or permanent injunction the use of such method, act, or practice ...
L.
Thus, to obtain temporary and/or permanent injunctive relief, the State need only
a
lv
demonstrate that: (i) the defendant has engaged in or is about to engage in an unlawful act or
Ve
practice under the DTPA; and (ii) the proceedings are in the public interest. Unlike a private litigant
k
seeking a TRO under Tex. R. Civ. P. 680, the State is not required to demonstrate a likelihood of
er
Cl
success, irreparable injury, or balancing of the equities. State v. Texas Pet Foods, 591 S.W.2d 800,
ct
tri
When it is determined that the statute is being violated, it is within the province of
the District Court to restrain it. The doctrine of balancing the equities has no
is
Id. Texas courts have repeatedly held that "when an applicant relies upon a statutory source for
Co
injunctive relief, such as the DTPA, the statute's express language supersedes the common law
is
injunctive relief elements such as imminent harm or irreparable injury and lack of an adequate
av
remedy at law." West v. State. 212 S.W.3d 513 , 519 (Tex. App.-Austin 2006, no pet.). The West
Tr
court held that common law requirements for a temporary injunction are inapplicable to the State' s
y
requests for temporary injunctive relief and asset freeze when grounded in the DTPA.
op
Here, Plaintiff has met the two requirements for injunctive relief under DTPA 17.47(a): (i)
lc
Defendants have committed unlawful conduct under the DTPA; and (ii) an injunction against this
ia
fic
unlawful conduct is in the public interest. By deceiving and scaring consumers into paying for
of
worthless and unnecessary services, Defendants have committed and continue to commit the
Un
e
l 7.46(b)(l ); causing confusion or misunderstanding as to the source, sponsorship, approval , or
ic
Pr
certification of services, in violation of DTP A § 17.46(b)(2); causing confusion or
L.
violation of DTPA § 17.46(b )(3); representing that services have sponsorship, approval ,
a
lv
characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person
Ve
has a sponsorship, approval , status, affiliation, or connection which he does not have, in violation
k
of DTPA § 17.46(b)(5) ; representing that services are of a particular standard, quality, or grade, if
er
Cl
they are of another, in violation of DTPA § l 7.46(b )(7); knowingly making false or misleading
statements of fact concerning the need for repair service, in violation of DTP A § 17.46(b )( 13 );
ct
tri
representing that work or services have been performed on goods when the work or services were
is
not performed, in violation of DTPA § 17.46(b)(22); and failing to disclose information concerning
.D
goods or services which was known at the time of the transaction with the intent to induce the
Co
consumer into a transaction into which the consumer would not have entered had the information
is
Moreover, Defendants continue to defraud consumers across the country, seeking hundreds
Tr
- sometimes thousands - of dollars from each consumer. Defendants have been operating the
y
present scheme for years, cycling through various telephone numbers and addresses to avoid
op
detection. It can be inferred from this pattern of past and present conduct that Defendants will
lc
continue this scheme absent judicial intervention. See e.g.. SEC v. Manage ment Dynamics. Inc.,
ia
fic
515 F.2d 801 , 807 (2nd Cir. 1975) ("the commission of past illegal conduct is highly suggestive
of
of the likelihood of future violations"). Defendants ' deceptive scheme has resulted in millions of
Un
e
Defendants' fraudulent behavior and to prevent more consumers from being deceived. Plaintiff
ic
has therefore met the requirements for seeking injunctive relief under DTPA § 17.4 7(a).
Pr
The Individual Defendants are Liable under the DTP A.
L.
Under Texas law, corporate agents are individually liable for fraudulent or tortious acts
a
lv
committed while in the service of their corporation. See Miller v. Keyser. 90 S. W.3d 712, 717
Ve
(Tex. 2002); JJJJ Walker, LLC v. Yollick, 447 S.W.3d 453, 470 (Tex. App. Houston [14 th Dist.]
k
2014); Restatement (Second) of Agency § 348 (1958) ("An agent who fraudulently makes
er
Cl
representations, uses duress, or knowingly assists in the commission of tortious fraud or duress by
his principal or by others is subject to liability in tort to the injured person although the fraud or
ct
tri
duress occurs in a transaction on behalf of the principal.") (cited with approval in Miller , 90 S.W .3d
is
at 717 n.29). If a corporate officer directs or participates in wrongdoing, personal liability may be
.D
imposed without piercing the corporate veil. Leyendecker & Associates. Inc. v. Wechter. 683
Co
S.W.2d 369, 375 (Tex. 1984); Sanchez v. Mulvaney, 274 S.W.3d 708, 712 (Tex.App. - San
is
Antonio 2008, no pet.). Similarly, corporate agents are individually liable under the DTPA based
av
on their own conduct. See Miller, 90 S.W.3d at 716-17; Weitzel v. Barnes, 691 S.W.2d 598 (Tex.
Tr
1985).
py
As set out in more detail above, the individual Defendants direct and participate in the
co
deceptive conduct and guide and direct their limited liability companies. As managing members
al
for their respective companies, individual Defendants are in charge of directing all of the activities
ci
of such entities. For example, individual Defendants established bank accounts for the companies,
fi
of
established credit card processing accounts through which consumers ' payments are made, and
Un
e
compames. Additionally, individual Defendants transfer money between various personal and
ic
Pr
business accounts, and transfer large sums of money to foreign bank accounts.
The Court Should Grant the Proposed TRO Ex Parte as Specifically Authorized By Law.
L.
As discussed above, a temporary restraining order is warranted because Defendants
a
lv
continue to participate in unlawful conduct and an injunction would be in the public interest. An
Ve
ex parte injunction is also appropriate here given Defendants' propensity for asset dissipation and
k
their ongoing statutory violations. Tex. R. Civ. P. 680 allows this Court to grant a TRO ex parte if
er
Cl
"it clearly appears from specific facts shown by affidavit or by the verified complaint that
immediate and irreparable injury, loss, or damage will result to the applicant before notice can be
ct
tri
served and a hearing had thereon." Similarly, under DTPA § 17.47(a), the State is not required to
is
give prior notice to the defendants of the TRO if the State has good cause to believe that such an
.D
emergency exists that immediate and irreparable injury, loss or damage would occur if prior
Co
As explained in more detail below, there is good cause to believe that Defendants are likely
av
to secrete and dissipate assets obtained by means of their deceptive trade practices. The evidence
Tr
shows that Defendants routinely wire large amounts of money, usually well in excess of
py
$100,000.00 per month, from their U.S. bank accounts into foreign bank accounts, many of which
co
are controlled by relatives or close friends of Defendants. Therefore, notice to Defendants prior to
al
the issuance of the TRO and asset freeze would allow Defendants to immediately transfer their
ci
current assets out of the country, jeopardizing the potential for restitution. As such, notice to
fi
of
e
unlawfully obtained by Defendants will be preserved for restoration to injured consumers.
ic
Pr
Additionally, the severe and continuous nature of Defendants' unlawful conduct suggests that they
will conceal or destroy records if given prior notice of an injunction. An ex parte order is thus
L.
necessary to afford appropriate relief.
a
lv
The Court Should Freeze Defendants' Assets.
Ve
As stated above, in addition to an injunction of Defendants ' unlawful conduct, Plaintiff
k
also seeks to freeze Defendants' assets as a means of preserving restitution for consumers. This
er
Cl
Court has authority to freeze Defendants' assets and the Court should exercise that authority.
The Court has statutory and equitable authority to freeze Defendants' assets.
ct
tri
The Court has statutory and equitable authority to impose a temporary asset freeze in order
is
to provide restitution to consumers. West, 212 S.W.3d at 519; Pierce v. State , 184 S.W.3d 303 ,
.D
308 (Tex. App.-Dallas 2005, no pet.). Section 17.47(d) of the DTPA expressly authorizes this
Co
The court may make such additional orders or judgments as are necessary to
compensate identifiable persons for actual damages or to restore money or
av
property, real or personal, which may have been acquired by means of any
unlawful act or practice [under the DTPA].
Tr
DTPA § 17.47(d) (emphasis added). The DTPA also mandates that its provisions "shall be liberally
py
construed" and that courts provide "efficient and economical procedures to secure .. . protection"
co
of Texas consumers:
al
This subchapter shall be liberally construed and applied to promote its underlying
ci
purposes, which are to protect consumers against false, misleading, and deceptive
fi
e
The Legislature has made clear in sections 17.47(d) and 17.44(a) that courts are to exercise
ic
Pr
their powers of equity to make orders and judgments that provide restitution to Texas consumers.
As the Texas Supreme Court acknowledged, the Legislature' s directive that the DTPA be liberally
L.
constructed effectuates the DTP A' s goal of protecting Texas consumers. Cameron v. Terrell &
a
lv
Garrett. Inc. , 618 S.W.2d 535 , 540--41 (Tex. 1981). The DTPA also provides that its specific
Ve
remedies are not exclusive, thereby allowing all common law and statutory remedies to be applied.
k
DTPA § 17.43 ("The remedies provided in this subchapter are in addition to any other procedures
er
Cl
or remedies provided for in any other law ... ").
Texas courts have routinely exercised their equitable and statutory powers to impose a
ct
tri
temporary asset freeze under § 17.47(d) of the DTPA. In West v. State , the court of appeals
is
affirmed the district court' s asset freeze where the State had produced evidence that, unless
.D
defendants were immediately restrained , defendants would dissipate funds obtained in violation of
Co
the DTPA before trial. West, 212 S. W.3d at 521 . In Pierce v. State , the court of appeals affirmed
is
a temporary asset freeze to prevent further violations of the DTPA by defendants. Pierce, 184
av
S.W.3d at 308.
Tr
Texas courts are not alone in exercising their equitable powers to award this type of
y
temporary relief Other state and federal courts routinely use their equitable powers in granting
op
The issue is whether, incident to its express statutory authority to issue a permanent
ia
injunction, a court may also exercise the traditional inherent powers of a court of
fic
equity. These include, in particular, the power to order preliminary relief, including
an asset freeze, that may be needed to make permanent relief possible. The
of
e
the U.S. Supreme Court explained in Porter v. Warner Holding Co., a rent control case, equitable
ic
Pr
powers of the court are "even broader and more flexible" when there is a public interest at stake:
Unless otherwise provided by statute, all the inherent equitable powers of the
L.
District Court are available for the proper and complete exercise of that jurisdiction.
And since the public interest is involved in a proceeding of this nature, those
a
equitable powers assume an even broader and more flexible character than when
lv
only a private controversy is at stake.
Ve
Porter v. Warner Holding Co. , 328 U.S. 395, 397-98 (1946) (citation omitted). The absence of
k
any explicit language in the DTPA directing courts to enter a temporary asset freeze does not
er
constrain this Court from exercising its equitable powers to preserve assets necessary to give
Cl
complete relief to Texas consumers. The U.S . Supreme Court noted in Porter:
ct
tri
[T]he comprehensiveness of this equitable jurisdiction is not to be denied or limited
in the absence of a clear and valid legislative command. Unless a statute in so many
is
in equity, the full scope of that jurisdiction is to be recognized and applied. 'The
great principles of equity, securing complete justice, should not be yielded to light
inferences, or doubtful construction. '
Co
id. at 398 (citation omitted). Citing to Porter, the Eleventh Circuit stated in Federal Trade
is
Commission v. U.S. Oil & Gas Corp., a federal consumer protection and temporary asset freeze
av
case:
Tr
Congress did not limit the court's powers under the final proviso of§ 13(b) and as
py
Federal Trade Comm ·n. v. U.S. Oil & Gas Corp., 748 F.2d 1431 , 1434 (11 th Cir. 1984) (footnote
al
ci
omitted). Following this principle, the Fifth Circuit has noted that the legislative purpose of
fi
protecting consumers is served with respect to a temporary asset freeze under the federal consumer
of
Un
e
Without this injunction power consumers have no protection at all during the
ic
pendency of the suit . .. It is only good sense that where there is a probability that
the act will eventually be found illegal and the perpetrator ordered to cease, that
Pr
some method be available to protect innocent third parties while the litigation winds
its way through final decision.
L.
Federal Trade Comm 'n v. SouthwestSunsites, Inc. , 665 F.2d 711 , 720 (5th Cir. 1982) (citation
a
lv
omitted).
Ve
The same principles in Porter and the forgoing cases apply here. Texas state district courts
k
are also courts of equity and have the broad and inherent traditional powers of equity to order
er
complete relief, including an asset freeze, unless those powers are limited by the legislature. See
Cl
Tex. Gov. Code§ 24.008. For example:
ct
tri
• A bramson v. Abramson, 788 S.W.2d 860, 862-63 (Tex. App.-Houston [14th Dist.] 1990,
writ denied) (The district court' s "inherent power flows from article V of the Texas
is
Constitution and includes whatever powers were possessed by courts of law or equity ...
.D
[A] a court may act on the basis of inherent judicial power, modified by whatever statutory
enactments the legislature has passed, but again without the consent of the litigants .. .
(citation omitted));
Co
• In re Hereweareagain. Inc., 383 S.W.3d 703 , 709 n. 9 (Tex. App.-Houston [14th Dist.]
2012, no pet. ) ("Courts of equity have inherent power to appoint receivers independently
is
• Aubin v. Territorial Mo,~tgage Co. of America. Inc. , 640 S.W.2d 737, 740 (Tex. App.-
Tr
Houston [ 14th Dist.] 1982, no writ. ) (recognizing that a court of equity has the authority to
fashion relief according to common law principles and without statutory authority); and
py
• Pub. Util. Comm'n o,fTexas v. Pedernales Elec. Co-op., Inc. , 678 S.W.2d 214, 219- 20
co
(Tex. App.- Austin 1984, writ ref d n.r.e.) (recognizing the inherent power of the district
court to protect utility' s property).
al
The DTPA contains no limitation on the Court's equitable powers to preserve assets for consumer
ci
restitution. To the contrary, the open-ended language of § 17.47(d) makes it clear that the
fi
of
legislature intended Texas courts to exercise their inherent equitable powers to fashion orders and
Un
e
As the Powers court explained, courts of equity are not constrained from fashioning relief as
ic
Pr
necessary to do equity unless explicitly constrained by statute. The DTP A has no such statutory
constraint. Instead, the DTP A explicitly directs the Court to exercise its inherent authority to order
L.
relief consistent with providing full restitution to consumers. As the West and Pierce cases hold,
a
lv
such authority includes issuing a temporary asset freeze to preserve consumer restitution until final
Ve
trial. West, 212 S.W.3d at 517 ; Pierce, 184 S.W.3d at 308 .
k
An assetfreeze is necessary to preserve assets for consumer restitution.
er
Cl
An asset freeze through a temporary restraining order and, later, a temporary injunction is
an "efficient and economical procedure[] to secure ... protection" of Texas consumers. DTPA
ct
tri
§ 17.44(a). In order for the Court to provide restitution to consumers through § 17.47(d),
is
Defendants must be enjoined from spending or hiding the funds obtained from consumers or
.D
otherwise encumbering assets paid for with consumer funds. See West, 212 S. W.3d at 521
Co
(affirming asset freeze where the State had produced evidence that unless defendants were
is
immediately restrained defendants would dissipate funds obtained in violation of DTP A before
av
trial).
Tr
Texas courts have consistently held that where there is a risk the defendant will dissipate
py
assets that are the subject of the suit, a temporary injunction and asset freeze may be warranted to
co
• In Minexa Arizona. Inc. v. Staubach, 667 S.W.2d 563 , 567 (Tex . App.- Dallas 1984, no
writ), a class action case involving a fraudulent investment scheme, the Dallas court of
ci
appeals held a temporary asset freeze was necessary to prevent defendants from
fi
transferring the assets to other corporations and beyond the trial court' s jurisdiction during
of
e
multiple landowners, the court of appeals noted that if the defendant "expend[ ed] any of
ic
the [subject] funds wrongfully during the course of the lawsuit, the court's control and any
Pr
final judgment it may give [would] be a nullity." Id. The court went on to note:
"Consequently, the district court had a duty to issue the temporary injunction to preserve
the status quo, and to protect its jurisdiction, pending final hearing." Id. (emphasis added).
L.
• In Gatlin v. GXG, Inc., 1994 WL 137233 at *6-8 (Tex. App.-Dallas 1994, no writ), a
a
dispute between business associates, the court of appeals upheld a temporary injunction
lv
and asset freeze , noting that the party' s remedy at law was inadequate when the defendant's
Ve
funds would be reduced by defendant and not available in their entirety pending final
hearing.
k
• In Baucum v. Texam Oil Corp ., 423 S.W.2d 434, 440--42 (Tex. Civ. App.- El Paso 1967,
er
writ ref'd n.r.e.), the court of appeals upheld a temporary injunction and asset freeze in a
Cl
case involving an officer's breach of fiduciary duty to the corporation, noting it was
necessary to preserve the status quo and that it is not enough that there be "some remedy
at law" but that such remedy "must be practical , available and effectual."
ct
tri
• In Tisino v. R&R Consulting & Coordinating Group, L.L.C. , 478 Fed. Appx. 183, 2012
WL 2005282 (5th Cir. 2012), the Fifth Circuit, applying Texas law, held that imposing a
is
preliminary injunction and asset freeze was warranted because of "the significant risk that
.D
... settlement funds [paid to a disbarred attorney] ... would be dissipated and placed
beyond [his former clients ' ] reach." Id. at *3. This risk "constitute[ d] a threat of substantial
irreparable injury." Id.
Co
Under DTPA § 17.46 (c)( l )-(2), Texas courts may look to federal case law in interpreting
is
DTPA § 17.46 (c)). Federal courts have found asset-freeze injunctions appropriate to preserve
av
• In Federal Trade Commission v. H. N. Singer, Inc., 668 F.2d 1107, 1112 (9th Cir. 1982),
py
the court found that an asset freeze was necessary because defendants ' activities " lead to
the conclusion that, absent a freeze , they would either dispose of, or conceal , or send
co
abroad, all of the moneys that they have obtained from their victims." Id.
• In a case involving a deceptive travel agency, the Seventh Circuit held that since the agency
al
had a history of shifting assets around between the company and individuals, the trial court
ci
"had a duty to ensure that the assets of the ... defendants were available to make restitution
to the injured consumers." Fed. Trade Comm 'n v. World Travel Vacation Brokers. Inc. ,
fi
e
in order to preserve the possibility of complete and meaningful relief at the conclusion of
ic
litigation." Id. at 559. "This is especially true where the evidence strongly indicates that
Pr
the assets were ill-gotten gains at the expense of an interest of the public protected by law."
Id. at 562.
L.
In short, where there is a risk of dissipation of assets that are the subject matter of the suit, the
a
Court has a duty to order a temporary asset freeze to maintain the status quo. This duty is
lv
Ve
heightened when, as here, the case brought by the State is in the public interest. DTPA § l 7.47(d).
The Court thus has authority to order the asset freeze and temporary restraining order in the form
k
er
attached hereto.
Cl
The Evidence Establishes that Defendants Will Likely Dissipate Assets
ct
Defendants take in hundreds of thousands of dollars from innocent consumers every
tri
month. 87 From March 2015 to September 2018, Defendants collected at least $11 ,147,748.8 1
is
.D
through their two credit card processing accounts, including at least $4,155,966.86 from January
to September 2018. 88
Co
Once defendants receive consumer funds, they almost immediately transfer most of the
is
funds to bank accounts in India. For example, between May 2016 and February 2018, Latitude ' s
av
EMS account had net sales totaling $3 ,797,390.32. 89 Funds from the EMS account were
Tr
transferred to Latitude ' s Comerica account. 90 During that same time period, Defendant Oberoi
py
initiated or authorized international transfers from Latitude ' s Comerica account totaling
co
$2,549,954.95 .9 1 Over $1 million of that went to Defendant Oberoi ' s brother-in-law or businesses
al
ci
87
PX 9, Adkins Affidavit, ,i,i 11 - 12, Exhibits E-F.
88 Id.
fi
89
Id. ,i 12.
of
90 Id.
91
Id. ,i,i 21-27.
Un
e
20 18, Defendant Oberoi also wrote at least 29 checks totaling $355 ,653.00 to himself from
ic
Latitude ' s Comerica account. 93
Pr
Conclusion
L.
Defendants continue to operate an elaborate and far-reaching scam. They scare consumers
a
lv
into believing they have computer viruses, trick them into believing that Defendants are legitimate
Ve
repair-persons, and convince them to spend hundreds - sometimes thousands - on fake services.
k
Plaintiff asks this Court to grant its motion for an ex parte TRO to stop Defendants ' unlawful
er
Cl
conduct and preserve restitution for consumers.
ct
tri
Respectfully submitted,
is
KEN PAXTON
Attorney General of Texas
.D
JEFFREY C. MA TEER
Co
BRANTLEY STARR
is
DARREN MCCARTY
Tr
92
Id. 11 21-22 .
91
Id. 120 .
Un
e
ic
Pr
C. BRAD scHUELl(E'--
L.
State Bar No. 24008000
brad.schuelke@oag.texas.gov
a
LUCASH. WOLLENZIEN
lv
State Bar No. 24106709
Assistant Attorneys General
Ve
Office of the Attorney General
P.O. Box 12548 (MC-010)
k
Austin, Texas 78711
er
Telephone: (512) 463-1264
Facsimile: (512) 370-9125
Cl
ATTORNEYS FOR PLAINTIFF
ct
tri
is
.D
Co
is
av
Tr
py
co
al
fi ci
of
Un
e
I hereby certify that a true and correct copy of the foregoing Plaintiff's Brief in Support of
ic
Temporary Restraining Order and Asset Freeze was served via certified mail, return receipt
requested, as indicated below on the 27 th day of February 2019.
Pr
cu slt
L.
a
C. Brad Schuelke
lv
Ve
We Brand Better, LLC
Through The Company Corporation
k
2711 Centerville Road, Ste 400
er
Wilmington, DE 19808
Cl
Latitude Solutions and Consulting LLC
Through The Fein Law Firm P.C.
15455 Dallas Parkway, Ste. 1225
ct
tri
Addison, TX 75001
is
Sahi l Miglani
.D
Harneet Oberoi
1416 Guthrie Ln
is
Allen, TX 75013
av
Tr
py
co
al
fi ci
of
Un
e
THE STATE OF TEXAS, § IN THE DISTRICT COURT OF
ic
Plaintiff, §
Pr
§
v. § TRAVIS COUNTY, TEXAS
L.
§
WE BRAND BETTER, LLC, LATITUDE §
a
SOLUTIONS & CONSULTING LLC, §
lv
SAHIL MIGLANI, and HARNEET OBEROI, §
Defendants. § 200th JUDICIAL DISTRICT
_______
Ve
TEMPORARY RESTRAINING ORDER AND ASSET FREEZE
k
er
1. Plaintiff, the State of Texas, has filed its original petition in this cause seeking a Temporary
Cl
and Permanent Injunction and has presented its Application for a Temporary Restraining
ct
Order. Based on the findings below, the Application for Temporary Restraining Order is
tri
GRANTED.
is
2. This Court FINDS it has jurisdiction over the subject matter of this case, jurisdiction over
.D
the parties, and venue in this district is proper. This Court FINDS that there is good cause
Co
to believe Defendants have engaged in and are likely to engage in acts and practices that
is
violate §§ 17.46(a) and (b) of the Texas Deceptive Trade Practices-Consumer Protection
av
Act (“DTPA”), Tex. Bus. & Com. Code §§ 17.41-17.63. The Court FINDS that this action
Tr
is in the public interest and a Temporary Restraining Order should be issued to restrain and
y
op
prevent Defendants’ continued unlawful acts and practices, as specified below, in violation
lc
3. It appears from the evidence set forth in Plaintiff’s Original Petition and Application for
fic
Temporary Restraining Order, the affidavits, and attached exhibits, that unless Defendants
of
are immediately restrained from the acts and practices below, Defendants will continue to
Un
commit such unlawful acts and practices before notice can be given and a hearing can be
held on Plaintiff’s request for a temporary injunction. Furthermore, the Court FINDS that
e
unless Defendants are immediately restrained and an asset freeze is granted, there is good
ic
Pr
cause to believe (a) Defendants will dissipate funds, obtained from unlawful acts or
L.
practices, before a temporary injunction hearing can be held and before full trial on the
a
merits, and (b) immediate and irreparable damage will occur to the Court’s ability to grant
lv
effective final relief for consumers—including restoration of money or property acquired
Ve
by means of unlawful acts or practices, rescission or reformation of contracts, restitution,
k
er
refund of monies paid, and disgorgement of ill-gotten monies. DTPA § 17.47(a), (b), (d).
Cl
Further, an order freezing certain accounts and assets described herein is necessary to
ct
preserve monies and assets that Defendants have obtained using unlawful acts or practices,
tri
until a temporary injunction hearing and final trial can be held. DTPA § 17.47(a), (b), (d).
is
The Court FINDS that prior notice of Plaintiff’s Original Petition and Application for
.D
Temporary Restraining Order is not required before entry of this Order because there is
Co
good cause to believe that such an emergency exists that immediate and irreparable loss or
is
injury and the dissipation of assets would occur as a result of such a delay. Id. The Court
av
FINDS this Temporary Restraining Order may be issued without bond. DTPA § 17.47(b).
Tr
I. DEFINITIONS
y
op
4. “Corporate Defendants” means We Brand Better, LLC, and Latitude Solutions &
lc
Consulting LLC.
ia
6. “Defendants” means all of the Individual Defendants and the Corporate Defendants,
of
individually, collectively, or in any combination, and each of them by whatever name each
Un
might be known.
e
7. IT IS ORDERED that Defendants and their officers, agents, servants, employees, and any
ic
Pr
other person or entity in active concert or participation with them—whether acting directly
L.
or through any corporation, company, partnership, trust, entity, subsidiary, division, or
a
other device—who receive actual notice of this order by personal service or otherwise, are
lv
hereby enjoined from transferring, concealing, destroying, or removing from the
Ve
jurisdiction of this Court any books, records, documents, or other written or computer
k
er
generated materials relating to the business of Defendants currently or hereafter in
Cl
Defendants’ possession, custody, or control except in response to further orders or
ct
subpoenas in this cause. tri
III. PROHIBITED BUSINESS CONDUCT
is
8. IT IS ORDERED that Defendants and their officers, agents, servants, employees, and any
.D
other person or entity in active concert or participation with them—whether acting directly
Co
other device—who receive actual notice of this order by personal service or otherwise, are
av
hereby enjoined from engaging in the following conduct until further order of this Court:
Tr
the name, address, telephone number, email address, social security number, other
Un
identifying information, or any data that enables access to the account of any
e
D. Passing off a Defendant’s services as those of another party;
ic
Pr
E. Causing confusion or misunderstanding as to the approval or certification of any of
L.
Defendants’ services, including, but not limited to, representing, directly or by
a
implication, that Defendants’ services are approved by, certified by, or otherwise
lv
authorized by Microsoft or any other third party;
Ve
F. Causing confusion or misunderstanding as to any Defendant’s affiliation,
k
er
connection, or association with, or certification by, another, including, but not
Cl
limited to, representing, directly or by implication, that one of Defendants are
ct
affiliated with, certified by, or otherwise authorized by Microsoft or any other third
tri
party;
is
benefits which they do not have, including but not limited to:
is
hacker, or other problem with a computer that does not exist or that is not
Tr
removed;
y
op
Defendant; or
ia
e
of another, including but not limited to:
ic
Pr
i. Representing, directly or by implication, that any computer command that
L.
a Defendant executes or test a Defendant runs is effective in detecting
a
viruses, malware, hackers, or other issues with a computer if it is not; or
lv
ii. Representing, directly or by implication, that any computer command that
Ve
a Defendant executes is effective in remediating any viruses, malware,
k
er
unauthorized access, or other issues with a computer if it is not;
Cl
J. Making any false or misleading statements of fact concerning the need for repair
ct
service, including but not limited to: tri
i. Representing that the presence of “foreign addresses” in the results of any
is
iv. Representing that one of the Defendants has detected a virus or other
fic
e
K. Representing, directly or by implication, that a Defendant has performed any work
ic
Pr
or service that it has not performed, including but not limited to:
L.
i. Representing that a Defendant has installed a network firewall or other
a
security tool that it has not; or
lv
ii. Representing that a Defendant has removed a virus, removed malware,
Ve
removed hackers, disabled foreign addresses, or taken any other steps to
k
er
secure a consumer’s computer when it has not;
Cl
L. Representing, directly or by implication, that a Defendant has made a refund which
ct
it has not made; tri
M. Representing, directly or by implication, that a Defendant intends to make a refund
is
the time of the transaction with the intent to induce the consumer into a transaction
is
into which the consumer would not have entered had the information been
av
disclosed; and
Tr
O. Collecting or attempting to collect any fee or payment for a service that was
y
op
marketed through any method or means that would violate this injunction.
lc
9. IT IS ORDERED that the Defendants and their officers, agents, servants, employees,
fic
attorneys and any other persons in active concert or participation with them, shall be
of
restrained from engaging in the following acts or practices until further order of this Court:
Un
e
removing, dissipating, distributing, assigning, granting a lien or security interest in,
ic
Pr
or otherwise disposing of any funds, real or personal property, accounts, contracts,
L.
shares of stock, other assets, or any interest therein, or allowing same to occur,
a
wherever located, that are:
lv
i. Owned, controlled, or held by, in whole or in part, for the benefit of, or
Ve
subject to access by, or belonging to any Defendant, including but not
k
er
limited to, any accounts to which any Defendant has signatory authority,
Cl
and specifically including but not limited to the following accounts:
ct
• Bank of America tri
o Account xxxx4268
o Account xxxx4480
is
o Account xxxx6745
.D
o Account xxxx0884
Co
o Account xxxx9545
o Account xxxx5154
is
• Comerica
av
o Account xxxxx5513
Tr
• Wells Fargo
o Account xxxxx4961
y
op
iii. In the actual or constructive possession of, or owned, controlled, or held by,
lc
ia
e
or storage facilities titled in the name of any Corporate or Individual Defendant or
ic
Pr
subject to access, ownership, or control by any Defendant, without providing
L.
Plaintiff and the Court prior notice by motion seeking such access.
a
10. IT IS ORDERED that any financial institution—including, but not limited to, the financial
lv
institutions specifically named above in paragraph 9—or any business entity or person,
Ve
maintaining or having custody or control of funds, accounts, or assets of any kind in the
k
er
name and/or for the benefit of any Defendant, or to which any Defendant has access to or
Cl
signatory power, who receive actual notice of this Order by personal service, email,
ct
facsimile transmission, or otherwise, shall (1) hold and retain within its control any of the
tri
assets, funds, accounts or other property, (2) prohibit the withdrawal, removal, assignment,
is
liquidation, or other disposal of the assets, funds, accounts or other property, except as
Co
permitted in accordance with Section V of this Order, and (3) produce a current balance
is
sheet and the previous six account statements for each account they locate, without further
av
11. The funds, property, and assets affected by this Section of this Order shall include both
y
op
existing assets and assets acquired by any Defendant after the effective date of this Order
lc
12. IT IS ORDERED that if any of the parties, persons, or entities referenced in this Order
of
agree in writing, through their authorized representatives or counsel, to specify that certain
Un
funds or assets be or remain frozen, or that certain funds or assets be released from the
e
Any financial institution holding funds or assets subject to the freeze under Section IV of
ic
Pr
this Order shall comply with any written directive relating to the freezing or unfreezing of
L.
any bank account or asset referenced in this Order, without further order of this Court,
a
provided such written directive is signed by an Assistant Attorney General representing the
lv
State of Texas and an authorized representative or attorney of such Defendant, person or
Ve
entity with custody or control of the bank account or asset involved. Nothing in this Order
k
er
shall preclude any party from filing a motion seeking a modification of this Order from the
Cl
Court.
ct
VI. EXPEDITED DISCOVERY
tri
13. IT IS ORDERED that Plaintiff shall be granted leave to conduct expedited discovery.
is
Any discovery taken or propounded by the Plaintiff for purposes of the temporary
.D
injunction hearing is in addition to, and not subject to, any limits on the quantity of
Co
permissible discovery provided for in the Texas Rules of Civil Procedure or the rules of
is
this Court. Any limitations and conditions set forth in the Texas Rules of Civil Procedure
av
or the rules of this Court regarding subsequent depositions of an individual shall not apply
Tr
A. Plaintiff may take the deposition of any witness upon three (3) days’ notice to the
lc
attorneys for the Defendants, if known, including taking telephonic, video, written,
ia
and other depositions with a request for production of documents prior to any
fic
B. Defendants shall provide the following information to counsel for the Plaintiff and
Un
e
order:
ic
Pr
i. Identification and description of all accounts and assets as described in
L.
Section IV, Paragraph 9 of this Order held or controlled by Defendants at
a
any time during the three (3) years prior to the effective date of this Order,
lv
including the names and locations of the financial institutions holding such
Ve
accounts or assets, the last three digits of any account numbers, the balance
k
er
of the accounts on the effective date of this Order, and the nature,
Cl
description, location and estimated value of any other assets;
ct
ii. Identification and location of any safe deposit box, commercial mail box,
tri
or storage facility that is either titled in the name, individually or jointly, of
is
iii. Identification of any Defendant or other party that has attempted to access
is
any account, safe deposit box, storage facility, or other asset subject to
av
iv. If the account, safe deposit box, storage facility, or other asset subject to
y
op
Section IV of this Order has been closed or removed, the date closed or
lc
removed, the balance or value on said date, and the current location of the
ia
removed funds or assets, and the identity of any immediate and subsequent
fic
to counsel for the Plaintiff and a statement, signed by Defendants and notarized,
e
receiving actual notice of this order:
ic
Pr
i. Names and last known contact information, including mailing address,
L.
physical address, telephone number, Social Security Number, and email
a
address of all current and former employees of any of Defendants;
lv
ii. All agreements entered into between (1) any one or more of the Defendants
Ve
and (2) any one or more of the Defendants or other parties or entities subject
k
er
to this Order;
Cl
iii. Any contract, agreement, or other document authorizing Defendants to
ct
provide customer support on behalf of Microsoft Corp., or otherwise
tri
reflecting any relationship, association, or affiliation between Defendants
is
Inc.;
Tr
production of documents within five (5) business days after service of the discovery
Un
request.
e
custodial affidavits be waived for purposes of all temporary injunction hearings.
ic
Pr
VII. CONCLUSION
L.
15. IT IS ORDERED that Defendants in this cause be and hereby are commanded forthwith
a
to comply with this Order from the date of entry until and to the fourteenth (14th) day after
lv
entry or until further order of this Court.
Ve
16. The Clerk of the above-entitled Court shall forthwith issue a Temporary Restraining Order
k
er
in conformity with the law and the terms of this Order. DTPA § 17.47(a).
Cl
17. This Order shall be effective without the execution and filing of a bond because Plaintiff,
ct
the State of Texas, is exempt from such bond under Tex. Civ. Prac. & Rem. Code § 6.001
tri
and DTPA § 17.47(b).
is
18. A temporary injunction hearing in this cause is hereby set for the ____ day of
.D
_________________________
op
JUDGE PRESIDING
lc
ia
fic
of
Un