magicJack PLUS Review

See if this helps you Stephen and/or anybody else………….although it is about the same ole chit……..1UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDASURINDER AGGARWAL, on behalf ofhimself and all others similarly situated,Plaintiffs,CASE NO.:vs.MAGICJACK LP and YMAXCOMMUNICATIONS CORP.,Defendants./COMPLAINT – CLASS ACTIONPlaintiff, Surinder Aggarwal ("Aggarwal" or "Plaintiff"), by his attorneys, as and for hisClass Action Complaint against Defendants, magicJack LP and YMax Communications Corp.(collectively referred to herein as "YMAX" or "Defendants"), alleges, with personal knowledgeas to his own actions and upon information and belief as to those of others, as follows:THE PARTIES1. Plaintiff, Surinder Aggarwal is a natural person of full age of majority who is aresident of the State of New Jersey. He is domiciled and resides in Saddle River, New Jersey.The members of the Class, as defined below, are persons who purchased a "magicJack"telephone device product and who, at least once during the relevant time period, paid full annualfees to subscribe to the "magicJack" service after the expiration of their prior subscription terms,and had their subscription terms backdated to on or about the prior expiration date. As a result,the Class members paid full annual subscription fees but were granted less than 12 full months ofservices by Defendants in return.Case 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 1 of 1922. Defendant, magicJack LP is a business corporation organized under the laws ofthe State of Delaware which maintains its principal place of business at 5700 Georgia Avenue,West Palm Beach, Florida 33405.3. Defendant, YMax Communications Corp is a business corporation organizedunder the laws of the State of Delaware which maintains its principal place of business at 5700Georgia Avenue, West Palm Beach, Florida 33405.4. Defendants, magicJack LP and YMax Communications Corp. are bothsubsidiaries of YMax Corporation. YMax Communications Corp. is directly owned by YMaxCorporation, and magicJack LP is a limited partnership of which YMax Corporation is thelimited partner and of which YMax Holdings Corporation is the general partner. YMaxHoldings Corporation is a subsidiary of YMax CorporationNATURE OF THE ACTION5. This action seeks to redress the injury-in-fact and loss of money that consumerswho purchased a "magicJack" telephone device and subscribed to "magicJack" telephone service(like Surinder Aggarwal) suffer when they pay to renew their annual subscriptions for the"magicJack" telephone service and receive less than a full year's worth of service in return. Asset forth more fully below, when a subscription is renewed after its expiration, Defendants havean undisclosed, unfair and unlawful business practice of backdating the renewal subscription tothe expiration date of a subscriber's prior period of subscription. Thus, for example, a subscriberwho renews his subscription 1 month after it has expired receives only 11 months of subscriptionprivileges in return, despite paying a full, 12-month annual fee to renew his subscription. By thisaction, Plaintiff seeks to recover the millions of dollars in subscription revenue whichDefendants have collected, but for which subscribers have not received any correspondingCase 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 2 of 193subscription privileges or services, and to enjoin this unfair, deceptive, and unlawful businesspractice from continuing in the future.JURISDICTION AND VENUE6. This Court has jurisdiction over this action pursuant to the Class Action FairnessAct of 2005, 28 U.S.C. § 1332(d). Jurisdiction is proper because (1) the matter in controversyexceeds the sum or value of $5,000,000.00, exclusive of interests and costs and (2) the namedPlaintiff and the Defendants are citizens of different states. 28 U.S.C. §1332(d)(2)(A).7. Venue is proper in this Court pursuant to 28 U.S.C. §1391(a) because the namedDefendants reside within this judicial district.THE OPERATIVE FACTS8. Defendants, operating through their various corporate entities, market and sell the"magicJack" telephone device. The "magicJack" telephone device is a product that users pluginto the port of their computer. Users then plug a normal telephone cord into the other end of the"magicJack" telephone device. The "magicJack" telephone device provides its users withseveral features, including the ability to make and receive "free" domestic and Canadian longdistance and local calls, receive a "free" telephone number, as well as "free" directory assistance,call waiting, voicemail and caller ID. The device works using a Voice over Internet Protocol("VoIP"). Defendants, operating through their various corporate entities, also provide consumerswho purchase the "magicJack" telephone device with a service that allows the purchasers to usethe "magicJack" telephone device to obtain telephone service. The service is provided inexchange for an annual subscription fee that the purchasers pay, all as more fully set forth below.9. Since approximately 2005, defendant magicJack LP, either directly or through itsparent company, has developed the technology, infrastructure and equipment necessary to createCase 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 3 of 194and support the "magicJack" product. It has spent more than $7 million in marketing andpromotional efforts, which has resulted in the device becoming a nationally recognized product,garnering positive reviews in major newspapers such as the New York Times and on networknews shows, and the "magicJack" telephone device has received several magazine awards for the"best new product," including PC Magazine's Editor's Choice Award in January 2008.10. More than seven million "magicJack" telephone devices have been soldthroughout the United States since the product was first offered for sale.11. Defendant YMax Communications Corp. obtained a federal trademarkregistration for the "magicJack" mark in June 2008. It then assigned that trademark to defendantmagicJack LP.12. Consumers who want to use the "magicJack" telephone device purchase theproduct through retail stores or on-line, including direct on-line sales from magicJack LP athttp://www.magicjack.com. The vast majority of the devices are sold at retail stores such as Walmart,Radio Shack and Best Buy across the United States. The initial purchase price includes the priceof the "magicJack" telephone device itself as well as the cost for one year of "magicJack"telephone service. This includes a software license for one year that allows the purchaser to usethe "magicJack" telephone service for that first year. The software that allows the purchaser touse the "magicJack" telephone service is uploaded onto the purchaser's computer directly fromthe device itself.13. There is a financial and operational relationship between defendants YMaxCommunications Corp. and magicJack LP. YMax Communications Corp. allows purchasers ofthe "magicJack" telephone device to subscribe to its inbound calling service. YMaxCommunications Corp. also provides customers with the option of purchasing internationalCase 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 4 of 195calling minutes on its prepaid platform. In addition, YMax Communications Corp. provides thenetwork capabilities to magicJack LP for magicJack LP's outbound calling service.14. Defendant YMax Communications Corp. is the entity that, among other things,provides the networking capabilities and infrastructure that allow persons who purchase the"magicJack" telephone device to use it in order to make and receive telephone calls and takeadvantage of the other services that are afforded to its users. Defendant magicJack LP is theentity that processes persons’ payments for their subscription renewals.15. At the end of the first year, consumers can renew their subscription to the"magicJack" telephone service by paying another annual fee, which is currently advertised, andhas historically been advertised, to cost $19.95. "magicJack" subscribers who, after their initialyear of service expires, wish to renew their subscriptions to the "magicJack" telephone servicedo so by paying $19.95 to defendant magicJack LP, which is supposed to provide them withanother full year of service.16. The renewal of the subscription is supposed to allow the renewing subscriber tocontinue to use, for one full year, the license for the software that he or she initially receivedwhen he or she initially purchased the device.17. If a person does not renew his or her annual subscription when it expires, the"magicJack" telephone device will no longer work until the subscription is renewed. The"magicJack" telephone service will immediately cease if an annual renewal subscription is notmade. However, the particular phone number that has been assigned to that person will notimmediately be revoked. Rather, if the subscription is not renewed within sixty (60) days ofexpiration, Defendants may revoke the phone number, at their discretion.Case 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 5 of 19618. Plaintiff purchased a "magicJack" telephone device in 2007. At the time ofpurchase, he paid $39.95, which price included the price of the device itself as well as the priceof one year of "magicJack" telephone service. Plaintiff purchased the device to use in order tomake and receive telephone calls. The packaging containing the "magicJack" device thatPlaintiff purchased states: "NO Contracts. NO Cancellation Fees. NO Credit Card or billinginfo required – because there is no monthly phone bill to pay when you use a magicJack."19. When Plaintiff purchased his "magicJack" telephone device, he was notprovided with any information or documentation regarding any terms and conditions of his useof the "magicJack" telephone service. He did not have any opportunity to set any terms andconditions of his use of the "magicJack" telephone service.20. On December 22, 2009, Plaintiff renewed his subscription for the "magicJack"telephone service. He paid $19.95 by credit card to magicJack LP for this annual subscription.This annual subscription expired on December 21, 2010. Plaintiff's ability to use the"magicJack" telephone device was suspended upon the expiration of his subscription onDecember 21, 2010.21. Plaintiff subsequently renewed his subscription for the "magicJack" telephoneservice on January 10, 2011. On that date, he paid $20.91 by credit card to magicJack LP inorder to obtain another full year of service that he expected would run from January 10, 2011 toJanuary 9, 2012. The payment of $20.91 included the $19.95 annual renewal fee and a separatecharge for a telecommunications surcharge.22. However, after paying the $20.91 to renew his subscription for the service, hechecked his subscription and discovered that, rather than running from January 10, 2011 toCase 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 6 of 197January 9, 2012, his most recent subscription for the service has been backdated by Defendantsso that it will expire on December 21, 2011, less than a full year from the date of his renewal.23. As a result of this backdating, Plaintiff has been compelled to pay subscriptionfees for a 52 week period, although he received two weeks and five days less of subscriptionprivileges in return. In other words, even though plaintiff has paid for a full 52 weeks of"magicJack" telephone service, as a result of the backdating he will only receive 49 weeks andtwo days of the service.24. In violation of Plaintiff's contractual rights and his rights under Florida law,Defendants deprived Plaintiff of a portion of the annual subscription services for which he hadpaid. In fact, when Plaintiff renewed his subscription for the "magicJack" telephone service inthe prior year 2009, his subscription was also backdated such that he was also deprived of his 12full months of "magicJack" telephone service.25. Defendants did not inform Plaintiff at the time of his initial purchase of the"magicJack" telephone device, or any time thereafter, that renewal subscriptions that arepurchased after the prior expiration date are backdated to the prior expiration date. Defendantsdo not disclose this backdating policy in any of the materials that are used to promote the productor in any of the materials that are disseminated to persons who purchase the product. The policyof backdating renewal subscriptions is entirely undisclosed to consumers.26. In fact, Defendants represent that a renewal subscription is for a full year. Thepackage that the "magicJack" device is sold in states:"Additional years of service for just $19.95 per year."The website maintained by Defendants, http://www.magicjack.com, states in several places:"You can purchase an additional year of service for $19.95."Case 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 7 of 198The website also has a question and answer section, which posts the question "When is myannual renewal fee due?" The response that Defendants provide to this question is as follows:"Your annual renewal fee will be due one year after you first register.For your convenience we offer automatic renewals. Go to your account atmy.magicjack.com and login to manage this feature.If you opt out of the automatic renewal feature, we encourage you to renew inadvance of your renewal date to ensure uninterrupted use of your service."Defendants do not anywhere disclose or advise persons that, if they renew after the expirationdate, their next annual subscription for the service will be backdated to the date that the prioryear's subscription expired.27. Defendants’ policy and practice of backdating subscriptions that are purchasedafter the expiration of the prior year's subscription apply in an identical manner to all personswho have purchased the device and who have renewed their subscriptions after the expiration oftheir prior year's subscription.CHOICE OF LAW28. Florida law governs the state law claims asserted herein by Plaintiff and theClass members.29. Defendants’ acts and omissions discussed herein were orchestrated andimplemented from Defendants’ principal places of business in West Palm Beach, Florida.30. Florida has a substantial interest in protecting the rights and interests of Floridaresidents and residents of other states of the United States against wrongdoing by companiesoperating and conducting business in Florida, which interest is greater than that of any other stateor country.Case 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 8 of 19931. Application of Florida law with respect to Plaintiff and the Class Members’claims is neither arbitrary nor fundamentally unfair because Florida has significant contacts anda significant aggregation of contracts with the matters in dispute in this action that give Florida asubstantial interest in the claims of the Plaintiff and the class sought herein.CLASS ACTION ALLEGATIONS32. Plaintiff brings this action on his own behalf and on behalf of all others similarlysituated pursuant to Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.The action is brought on behalf of a class (the "Class") defined as all persons in the United Statesof America who, at any time on or after March 30, 2007, purchased and paid for a one yearrenewal of the subscription term for the "magicJack" telephone service after their priorsubscription term expired, and whose new renewal subscription term was deemed by Defendantsto have begun on or about the prior expiration date.33. Excluded from the Class are Defendants; any parent, subsidiary, or affiliate ofDefendants; any entity in which Defendants have or had a controlling interest, or whichDefendants otherwise control or controlled; and any officer, director, employee, predecessor,successor, or assignee of Defendants.34. This action is brought as a class action for the following reasons:a. The Class likely consists of over a million members and is therefore sonumerous that the joinder of all members, whether otherwise required or permitted, isimpracticable. At least seven million "magicJack" devices have been sold, and Plaintiffestimates that many purchasers have renewed their subscriptions for "magicJack" services aftertheir prior year's subscription ended.Case 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 9 of 1910b. Questions of law or fact common to the Class predominate over anyquestions affecting only individual members. Common questions of law and fact include:i. Whether Defendants have a generally applicable policy andpractice of backdating subscriptions that are renewed after the prior subscription term expires;ii. Whether Defendants’ policy of backdating such renewalsubscriptions is disclosed to the Class;iii. Whether Defendants’ marketing, advertising, promotional andsubscription materials fairly and adequately disclose or explain the backdating policy;iv. Whether Defendants’ failure to grant 12 full months ofsubscription privileges in exchange for a full annual fee is a breach of the terms of thesubscriptions that they provide for their "magicJack" telephone service;v. Whether Defendants have been unjustly enriched by their policyand practice of collecting subscription and service fees for time periods when subscribers do notreceive any of the privileges or services of Defendants’ "magicJack" telephone service;vi. Whether Defendants should be prevented from retaining thepayments made by consumers for time periods when they were not granted the benefits andservices of Defendants’ "magicJack" telephone service;vii. Whether Defendants’ policy and practice of granting less than 12months of subscription privileges in exchange for the full annual subscription fee is deceptive,misleading, unlawful, or improper;viii. Whether Defendants’ actions alleged herein constitute violations ofthe Florida Deceptive and Unfair Trade Practices Act;Case 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 10 of 1911ix. Whether members of the Class have sustained damages and, if so,the proper measure of damages to be applied to the Class members’ claims; andx. Whether Defendants should be enjoined from continuing theunlawful policy and practice of backdating subscriptions that are renewed after the expiration ofthe prior subscription period.c. The claims asserted by Plaintiff are typical of the claims of the membersof the Class.d. Plaintiff will fairly and adequately protect the interests of the Class, andPlaintiff has retained attorneys experienced in class action litigation and complex litigation,including consumer class actions. Plaintiff will vigorously prosecute this action on behalf of allpersons included within the Class, will respond to discovery directed to him, will appear toprovide deposition, hearing and/or trial testimony that may be required of him, and willotherwise commit himself to and make himself available for the successful prosecution of thisaction to judgment. He believes that his claims are typical of all of the other members of theClass because he has been impacted in the same manner by the same type of conduct applicableto all members of the Class, and is committed to representing those persons who have had thesame thing happen to them.e. A class action is superior to other available methods for the fair andefficient adjudication of the controversy, for at least the following reasons:i. Absent a class action, Class members as a practical matter will beunable to obtain redress; Defendants’ violations of their legal obligations will continue withoutremedy; additional consumers will be harmed; and Defendants will continue to retain their illgottengains;Case 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 11 of 1912ii. Given the relatively small amount of individual damages, it wouldbe a substantial hardship and uneconomical for individual members of the Class to retain counseland prosecute individual actions;iii. When the liability of Defendants has been adjudicated, the Courtwill be able to determine the claims of all members of the Class;iv. A class action will permit an orderly and expeditiousadministration of the Class members’ claims, foster economies of time, effort, and expense, andensure uniformity of decisions; andv. The lawsuit presents no difficulties that would impede itsmanagement by the Court as a class action.f. The prosecution of separate actions by individual members of the Classwould create a risk of incompatible standards of conduct for Defendants and of inconsistent orvarying adjudications for all parties.g. Defendants have acted on grounds generally applicable to the Classmembers, making class-wide monetary and injunctive relief appropriate to deter and enjoinDefendants from engaging in deceptive and unconscionable conduct in the future.COUNT I(Violation of Florida Deceptive and Unfair Trade Practices ActFla. Stat. §§ 501.201 et. seq.)35. Plaintiff repeats and realleges the allegations contained in Paragraphs 1-34 aboveas if fully set forth herein.36. Section 501-204(1) of the Florida Statutes prohibits "unfair methods ofcompetition, unconscionable acts or practices, and unfair or deceptive acts or practices in theconduct of any trade or commerce."Case 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 12 of 191337. Defendants’ conduct, as alleged herein, constitutes an unfair method ofcompetition, an unconscionable act or practice, and an unfair or deceptive act or practice in theconduct of a trade or commerce because Defendants, by and through their backdating practices,are systematically depriving Plaintiff and Class members of the full 12 months of "magicJack"inbound and outbound telephone service which they purchase when they renew theirsubscriptions for the service.38. Defendants’ unlawful and unfair business practices include, but are not limited tothe following:a. Providing less than 12 months of "magicJack" telephone services toconsumers who pay a full annual fee to renew their subscriptions after theexpiration of their prior subscription terms; andb. Charging and collecting subscription fees or dues covering a one year timeperiod and then failing to provide subscription services or privileges forthat full one year time period.39. The foregoing acts of Defendants constitute unfair business practices under theFlorida Deceptive and Unfair Trade Practices Act.40. Plaintiff and the Class members have been aggrieved and have suffered losses asa result of the Defendants’ violations of the Florida Deceptive and Unfair Trade Practices Act.By virtue of the foregoing unfair acts in the conduct of trade or commerce, Plaintiff and themembers of the Class have been substantially injured.41. Defendants continue to violate the Florida Deceptive and Unfair Trade PracticesAct and continue to aggrieve the members of the Class.Case 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 13 of 1914COUNT II(Breach of Contract)42. Plaintiff repeats and realleges the allegations contained in Paragraphs 1-34 aboveas if fully set forth herein.43. When defendant magicJack LP sells a one year renewal subscription, and when aconsumer purchases a one year renewal subscription, Defendants agree to provide one year of"magicJack" telephone service to the purchasing consumer. Specifically, when defendantmagicJack LP sells a one year renewal subscription, it agrees to allow the purchasing consumerto use its "magicOut" service (which is offered by defendant magicJack LP) that gives thesubscriber the ability to make outgoing calls to the United States, Canada, Puerto Rico and theVirgin Islands through his or her "magicJack" telephone device. And, when defendantmagicJack LP sells a one year renewal subscription, its related corporation, defendant YMaxCommunications Corp., agrees to allow the purchasing consumer to use its "magicIn" service(which is offered by defendant YMax Communications Corp.) that gives the subscriber theability to obtain a phone number and to receive phone calls through his or her "magicJack"telephone device.44. Defendants offer, including on their internet website and on the packaging for the"magicJack" telephone device, to enter into a binding and enforceable contract with consumers.The contract is formed when a particular person purchases a renewal subscription for the"magicJack" telephone service, and pays for that service, which payment is submitted to andaccepted by Defendants. In exchange, defendant magicJack LP agrees to allow the purchasingconsumer to use its "magicOut" service that gives the subscriber the ability to make outgoingcalls to the United States, Canada, Puerto Rico and the Virgin Islands through his or her"magicJack" telephone device, and defendant YMax Communications Corp. agrees to allow theCase 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 14 of 1915purchasing consumer to use its "magicIn" service that gives the subscriber the ability to obtain aphone number and to receive phone calls through his or her "magicJack" telephone device.45. The subscriber's payment and Defendants’ promises to provide "magicJack"inbound and outbound telephone services for a period of one year constitute valid consideration.46. Plaintiff entered into a contract with Defendants on or about January 10, 2011 bypaying $20.91 to purchase a one year renewal subscription entitling him to use the "magicJack"inbound and outbound telephone services, provided respectively by defendant YMaxCommunications Corp. and defendant magicJack LP, for one full year.47. Defendants breached the contract referenced in the previous paragraphs byproviding Plaintiff with less than 12 months of "magicJack" telephone service in exchange forhis payment of the full annual renewal subscription fee.48. Plaintiff was damaged as a direct and proximate result of Defendants’ breach ofthe contract formed on or about January 10, 2011. In particular, Plaintiff suffered a loss ofmoney equal to the value of the period of subscription for which he paid but did not and will notreceive any corresponding privileges of subscription — i.e., a period of two weeks and five days.49. Defendants entered into a valid and enforceable contract with every member ofthe Class. Each such contract was a standard consumer contract, containing the same essentialterms and provisions and in each case providing the renewing subscriber with the right to enjoy afull year of Defendants’ inbound and outbound services in consideration for the payment of a fullannual renewal subscription fee.50. Defendants breached the contract of every Class member in identical orsubstantially similar fashion, and all Class members were damaged in identical or substantiallyCase 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 15 of 1916similar fashion when Defendants deprived them of some portion of the annual renewalsubscriptions that they purchased and paid for in full.51. Defendants do not negotiate the terms of the renewal subscription contractsindividually with each Class member, but require all Class members to accept their terms.52. Plaintiff and the Class members have never agreed or assented to have theirrenewal subscriptions backdated in the manner alleged herein, or to accept less than a full year ofsubscription privileges in exchange for payment of a full annual subscription fee.COUNT III(Unjust Enrichment)53. Plaintiff repeats and realleges the allegations contained in Paragraphs 1-34 aboveas if fully set forth herein.54. Plaintiff and the Class members have conferred benefits upon Defendants bypaying renewal subscription fees in connection with renewal transactions that wereconsummated after the expiration of their prior subscription terms.55. Defendants have retained the monies paid by Plaintiff and the Class members inconnection with these transactions, but did not provide Plaintiff and the Class members with afull year of service that they purchased when they renewed their subscriptions. Specifically,Defendants have deprived Plaintiff and the Class members of a portion of the 12-month renewalsubscription for services that they have purchased.56. Defendants have collected full annual renewal subscription fees from Plaintiffand the Class members and granted them less than 12 months of subscription privileges andservices in return without adequate disclosure or consent.Case 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 16 of 191757. In the circumstances alleged herein, it is inequitable for Defendants to retain thefees paid by Plaintiff and the Class members for time periods as to which no subscriptionbenefits or services were granted.58. Defendants have unjustly enriched themselves by collecting and retainingrenewal subscription fees from Plaintiff and the Class members for time periods as to which nosubscription benefits or services have been or will be provided, and by doing so withoutdisclosure and consent. In equity and good conscience, Defendants are required to provide a fullyear of subscription services and privileges to Plaintiff and the Class members in exchange forthe full annual renewal subscription fees that they have paid in connection with thesetransactions.59. Defendants have been unjustly enriched by the course of conduct alleged herein,including by Defendants’ unfair practice of backdating subscriptions that are purchased after theexpiration of the prior subscription period.60. Defendants are not entitled to keep the monies improperly retained through theirundisclosed renewal subscription backdating practices and policies.61. Plaintiff and the Class members seek an Order of restitution from Defendants andrequest an Order of this Court requiring Defendants to disgorge the revenues retained byDefendants as a result of their wrongful conduct, plus attorneys’ fees, expert fees, interest,expenses, disbursements, and costs.62. No other remedy at law can adequately compensate Plaintiff and the Classmembers for the damages resulting from Defendants’ course of unfair conduct.Case 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 17 of 191863. Plaintiff and the Class are entitled to restitution or disgorgement of allsubscription fees collected by Defendants in connection with periods of renewal subscriptions asto which no subscription services or benefits were granted.DEMAND FOR JURY TRIALPlaintiff hereby demands a trial by jury on behalf of himself and the members of theClass as defined herein on all claims so triable.PRAYER FOR RELIEFWHEREFORE, Plaintiff, on behalf of himself and on behalf of the members of the Class,prays for judgment and relief as follows:1. Certifying, as soon as practicable, that this action may be maintained as a classaction pursuant to Rule 23(b)(2) and/or 23(b)(3) of the Federal Rules of Civil Procedure, asdefined above.2. Compensatory damages for breach of contract, and pursuant to Florida Statute§§501.201, et seq., for Defendants’ violations of the Florida Deceptive and Unfair Trade PracticesAct.3. In the alternative, a Judgment and Order of restitution in favor of the Classrequiring the disgorgement of all revenues and benefits received or obtained by Defendants as aresult of their wrongful conduct.4. The granting of a temporary and permanent injunction against Defendants’continued violations of the Florida Deceptive and Unfair Trade Practices Act.5. An Order awarding Plaintiff interest, costs, and attorneys’ fees pursuant to FloridaStatute §501.2105 and any other applicable law, including an award of costs and attorneys’ feesfor Plaintiff's creation of a common fund for the benefit of the Class.Case 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 18 of 19#808998 v1196. Such other and further legal and equitable relief as this Court deems just andproper.DATED: March 31, 2011Respectfully Submitted,STEARNS WEAVER MILLER WEISSLERALHADEFF & SITTERSON, P.A.Attorneys for PlaintiffMuseum Tower – Suite 2200150 West Flagler StreetMiami, Florida 33130Telephone: (305) 789-3200Facsimile: (305) 789-3395By: /s/ Richard B. JacksonRICHARD B. JACKSONFlorida Bar No.: 898910[email protected]MARTIN S. SIMKOVICFlorida Bar No.: 870625[email protected]Case 9:11-cv-80340-KLR Document 1 Entered on FLSD Docket 03/31/2011 Page 19 of 19