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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
CASE NO. _ _ _ __
FEDERAL TRADE COMMISSION,
'~~"

Plaintiff,

v.
POINTBREAK MEDIA, LLC, a limited liability company,
also d/b/a Point Break Media, Point Break Solutions, and
Kivanni Marketing,
DCP MARKETING, LLC, a limited liability company, also
d/b/a Point Break,
MODERN SPOTLIGHT LLC, a limited liability company,
MODERN SPOTLIGHT GROUP LLC, a limited liability
company, also d/b/a Modern Spotlight,
MODERN INTERNET MARKETING LLC, a limited
liability company,
MODERN SOURCE MEDIA, LLC, a limited liability
company, also d/b/a Modern Source,
PERFECT IMAGE ONLINE LLC, a limited liability
company,
DUSTIN PILLONATO, individually and as an officer of
Pointbreak Media, LLC, DCP Marketing, LLC, and Modern
Source Media, LLC,
JUSTIN RAMSEY, individually and as an officer of
Pointbreak Media, LLC,
AARON MICHAEL JONES, a/k/a Michael Aaron Jones
and Mike Jones, individually and as an officer of Pointbreak
Media, LLC,
RICARDO DIAZ, individually and as an officer of
Pointbreak Media, LLC,

MAY - 7 2018
STEVEN M. LARIMORE
CLERK U.S. DJST. CT.
S.D. OF FLA. FT. LAUD.

RULE 65(b)(l)
CERTIFICATION AND
DECLARATION OF EVAN
MENDELSON IN SUPPORT
OF PLAINTIFF'S EX PARTE
MOTIONS FOR
TEMPORARY
RESTRAINING ORDER AND
TO TEMPORARILY SEAL
THE DOCKET
Filed Under Seal

D. .

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MICHAEL POCKER, individually and as an officer of
Modern Spotlight LLC and Modern Spotlight Group LLC,
STEFFAN MOLINA, individually and as an officer of
Modern Spotlight Group LLC and Perfect Image Online
LLC,
Defendants.

I, Evan Mendelson, declare as follows:
1.

I am over eighteen years of age and a citizen of the United States. I am one of the

attorneys representing the Federal Trade Commission ("FTC" or "Commission") in the abovecaptioned action.
2.,

I am a member in good standing of the bar ofthe District of Columbia, and I am

authorized to practice in this Court on behalf of the FTC pursuant to Rule 4(d) of the Court's
Rules Governing the Admission, Practice, Peer Review, and Discipline of Attorneys. My work
address is 600 Pennsylvania Avenue, NW, Mail Stop CC-9528, Washington, DC 20580. Unless
stated otherwise, I have personal knowledge of the facts stated herein and, if called as a witness,
would competently testify thereto.
3.
Procedure in

I submit this certification pursuant to Rule 65(b)(l) of the Federal Rules of Civil
supp~rt

of the FTC's Ex Parte Motion for a Temporary ~estraining Order and

Memorandum in Support Thereof ("TRO Motion"). I also submit this certification in support of
the FTC's Ex Parte Motion to Temporarily Seal the Docket and Entire File, filed
contemporaneously with the TRO Motion.
4.

Pursuant to Fed. R. Civ. P. 65(b)(l), this Court may issue a TRO without notice to

Defendants if the facts show that immediate and irreparable injury will result to the applicant if

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notice is given and if counsel "certifies in writing any efforts made to give notice and the reasons
why it should not be required." For the reasons stated below, the FTC has not provided
Defendants with notice of this action or of the FTC's TRO Motion. The interests of justice
require that the FTC's motion be heard ex parte.
5.

The issuance of a non-noticed ex parte TROis appropriate to serve the

"underlying purpose of preserving the status quo and preventing irreparable harm just so long as
is necessary to hold a hearing and no longer." See VIP Cinema, LLC v. Eurokeyton S.A., 2012
WL 5398672, at *2 (S.D. Fla. Nov. 2, 2012) (quoting Granny Goose Foods, Inc. v. Brotherhood

ofTeamsters, 415 U.S. 423, 439 (1974)). The ex parte TRO in this case is necessary to stop an
ongoing fraud, freeze assets for consumer redress, and preserve evidence.
6.

As described more fully in the TRO Motion and its accompanying exhibits, there

is good cause to believe that immediate and irreparable harm will occur if Defendants receive
advance notice of any aspect of this action and if the FTC's present filings are not under seal.
The evidence shows that unless this Court seals the docket, the FTC's ability to obtain, and this
Court's ability to provide, complete and effective final relief will be irreparably harmed. The
evidence further establishes that the FTC is likely to prevail on the merits of its actions against
Defendants, and that Defendants will be liable for consumer injury resulting from their unlawful
scam.

DEFENDANTS' WILLINGNESS TO DISREGARD THE LAW
7.

Defendants engage in unlawful conduct by making false claims during robocalls

and live sales pitches to convince small business owners to pay hundreds of dollars for Google
listing "claiming and verification" services. On these calls, Defendants claim that they are
affiliated with Google and that the owners' businesses will be removed from Google search
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results unless they pay Defendants. Defendants, in fact, are not affiliated with Google, and
consumers' businesses are not in danger of removal.
8.

Defendants also claim that they can assign certain "'keywords" to small

businesses' online profiles, so that those businesses will appear higher in search results. The
claiming and verification process, in fact, does not allow businesses to assign themselves
keywords, and Defendants do not provide businesses with Google-linked keywords at all.
9.

Several days after Defendants make their initial sale, Defendants pitch a "'Citation

Program," promising first-page or first-place placement in Google search results. Defendants'
claim is false because first-page placement through such a search engine optimization program
cannot be guaranteed. In fact, Citation Program enrollees do not receive the promised results.
10.

Defendants' deceptive practices violate Section 5(a) of the FTC Act, 15 U.S.C.

11.

Defendants have also engaged in unauthorized billing practices.

12.

In October 2017, Bank of America Merchant Services closed Defendant

§ 45(a).

Pointbreak Media, LLC's ("'Point Break") merchant bank account due to predatory services,
scare tactics, and high chargeback rates. Point Break then wrote itself hundreds of checks,
without authorization, using prior or existing customer checking account data.
13.

Point Break's use of consumer checking account information for unauthorized

debits is an unfair billing practice in violation of Section 5 ofthe FTC Act, 15 U.S.C. §§ 45(a)
and 45(n).
DEFENDANTS' WILLINGNESS TO DISREGARD COURT ORDERS

14.

Individual Defendants Justin Ramsey and Aaron Michael Jones are violating

orders from previous FTC actions by operating this scam.

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15.

Ramsey is presently under a federal court order in FTC v. Justin Ramsey, et al.,

Case No. 17-cv-80032-K.AM (S.D. Fla.). This order bans him from placing robocalls to numbers
listed on the Do Not Call Registry, bans him from placing out-bound robocalls unless he can
prove the calls are to businesses, and requires him to disclose immediately the name of the caller
on all outbound sales calls. At the time that Ramsey agreed to these provisions, he already was
violating them through Point Break. Specifically, Point Break called phones numbers on the
National Do Not Call Registry, places robocalls to phones numbers that are not affiliated with
businesses, and does not identify itself on outbound telephone calls, instead claiming to be
Google or an affiliate of Google.
16.

Jones is presently under order in FTC v. Aaron Michael Jones, et al., Case No.

17-cv-00058-DOC-JCG (C.D. Cal.). This order bans him from all telemarketing, including
owning a company engaged in telemarketing. The FTC served Jones with a copy of the Order,
but he nevertheless maintained his status as an owner and manager of Point Break.
17.

Similarly, Defendant Dustin Pillonato is violating a Florida court order that bans

him from among other things, "using any false or misleading statement to induoe any person to
pay for goods and services." As demonstrated in the TRO Motion, Defendants regularly use
false or misleading statements to induce small business owners to pay them.
18.

Defendants have used several different corporate entities and aliases in an attempt

to disguise their identity from defrauded consumers and to evade law enforcement. Defendants
change corporate identities or aliases about every six months, but continue the same scam.
Furthermore, Defendant Point Break instructed its employees to identify themselves as working
for "Point Break Solutions," an unaffiliated company located in Las Vegas, Nevada.

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ILLUSTRATIVE CASES
19.

It has been the Commission's experience that defendants who engage in deceptive

and unfair practices, and who receive notice of the filing of an action by the FTC, often attempt
to undermine the FTC's efforts to preserve the status quo by immediately dissipating or
concealing assets and/or destroying documents. I am reliably informed that in the Eleventh
Circuit, the following has occurred since the year 2000:
a.

In FTC v. Hargrave & Associates, No. 3:08-cv-1001 (M.D. Fla. 2012), the

FTC sought and obtained an ex parte TRO with an asset freeze in conjunction with a
motion to show cause why the defendants should not be held in contempt. After being
personally served with the TRO, one defendant withdrew $19,000 from accounts he
failed to disclose to the receiver. To avoid being held in contempt of the TRO, the
defendant returned some, but not all, of the money.
b.

In FTC v. Fereidoun "Fred" Khalilian, No. 1:10-cv-21788 (S.D. Fla.

201 0), the FTC sought and obtained an ex parte TRO with an asset freeze. Before the
asset freeze could be processed by the banks, one of the defendant's employees withdrew
approximately $60,000 from the company's bank accounts. The defendant eventually
returned some, but not all, of the money. Additionally, the defendant attempted to
remove assets located in his personal residence. The receiver, however, was monitoring
the defendant's residence and, after observing people taking a number of items from the
defendant's residence at night, was able to halt the defendant's activities.
c.

In FTC v. Global Mktg. Group, Inc., No. 8:06-cv-2272 (M.D. Fla. 2006),

the court granted the FTC's ex parte motion for a TRO with an asset freeze, which the
FTC served on banks known to hold accounts of defendants. After being served with the
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order, one of the defendants successfully withdrew over $500,000 from accounts
previously unknown to the FTC. Most of these funds were wired to offshore bank
accounts. This defendant ultimately was held in contempt of court and fled the country
after failing to appear at a show cause hearing.
d.

In FTC v. American Entertainment Distribs., Inc., No. 1:04-cv-22431

(S.D. Fla. 2004), the Court entered an asset freeze that froze assets often corporate and
individual defendants. Within hours of receiving notice of the asset freeze, one of the
individual defendants withdrew $39,500 from his banlc Because the asset freeze had
been in place, the FTC was able to compel the individual defendant to return the money.
e.

In FTC v. Access Res. Servs., Inc., No. 0:02-cv-60226 (S.D. Fla. 2002), a

defendant who learned about the FTC's action attempted to dissipate $579,600 by paying
off the mortgage on his residence.
f.

In FTC v. Leisure Time Mktg., Inc., et al., No. 6:00-cv-1057 (M.D. Fla.

2000), the court entered a TRO against the defendants with immediate access to the
business premises. After an individual defendant was served and acknowledged his
understanding that he was to preserve all assets and documents, that defendant ordered
individuals to remove boxes of documents from one of the business premises.
Fortunately, a police officer assisting the FTC in the immediate access saw this activity,
and the FTC was able to contact the defendant's counsel and have the documents
returned. That individual defendant also attempted to hide certain documents on the
business premises in a room where FTC staff was informed that no business records were
stored. Because the FTC had immediate access to the business premises, the FTC found
these documents.
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20.

I am reliably informed of the following examples from other Circuits:
a.

In FTC v. American Home Servicing Center, LLC, No. 8:18-cv-0597 (C.D.

Cal. 2018), the FTC sought and obtained a TRO, asset freeze, and immediate access to
the business premises. One defendant, who was present during the immediate access,
informed another defendant, who was not present, about the action. The absent defendant
promptly withdrew at least $15,500 from one of the corporate accounts shortly after the
receiver's arrival at the business premises. The FTC and receiver are still working to
recover the funds.
b.

InFTCv. RevMountain, LLC, No. 2:17-cv-02000 (D. Nev. 2017), the FTC

sought and obtained a TRO, asset freeze, and immediate access to multiple business
premises. During the immediate access, there was a three-minute delay between when
the receiver or his representatives entered two different locations. This delay allowed a
defendant at the first location to instruct an employee at the second location to take a
$100,000 chec}( drawn on the defendant's home equity line of credit before the receiver
could gain access to the second location. The check was taken to the defendant's lawyer
but was not cashed because the asset freeze and TRO were in place.
c.

In FTC v. Kutzner, No. 8:16-cv-999 (C.D. Cal. 2016), the FTC sought and

obtained an asset freeze against a defendant who was not initially named in a complaint
and ex parte TRO. The defendant transferred $215,000 out of a corporate bank account
not covered by the initial freeze the day after the receiver took control of the corporate
entities. The court found the transfers indicative that the defendant would likely dissipate
or otherwise render monetary damages unrecoverable and granted an expanded asset
freeze.
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d.

In FTC v. Asset & Capital Management Group, No. 8:13-cv-01107 (C.D.

Cal. 2013), fully one week after the Court granted, and the FTC served upon all
defendants, an ex parte TRO that froze defendants' assets and appointed a Receiver, the
Receiver identified an additional business site that defendants had failed to disclose after
receiving repeated assurances from defendants that they had disclosed all of their
business locations. The undisclosed site turned out to be the defendants' headquarters
and contained extensive business records, including corporate and tax records, bank
statements, and personnel files for dozens of defendants' entities. The Receiver arrived
at the site unannounced. He found a defendant and his colleague carrying folded bankers
boxes from their car to the site, clearly intent on removing materials from the premises.
When the Receiver gained entry to the site, he found evidence that desktop computers
and records had recently been removed. The FTC subsequently learned that more than
60 servers and extensive records had been taken.
e.

In FTC v. E.MA. Nationwide, Inc., No. 1:12-cv-02394 (N.D. Ohio 2012),

the court denied the FTC's motion for an ex parte TRO and corporate asset freeze.
Within a week of the required notice, the individual defendants had withdrawn more than
$152,000 from a corporate bank account.
f.

In FTC v. Data Med. Capital, Inc., No. 8:99-cv-1266 (C.D. Cal. 2009), the

FTC moved for contempt and obtained an ex parte TRO and asset freeze against certain
defendants. The defendants learned of the FTC's contempt investigation, and one ofthe
defendants transferred over $900,000 to a personal bank account prior to the FTC's
filing. The receiver, who was appointed pursuant to the ex parte TRO, traced these assets

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and returned them to the receivership estate. The receiver's compensation for these tasks,
however, reduced the amount available for redress to the defendants' victims.
g.

In FTC v. Transcon. Warranty, Inc., No. 1:09-cv-2927 (N.D. Ill. 2009),

the FTC moved for a TRO with notice to the defendants. The notice was given, and the
Court granted the FTC's motion for a TRO, freezing defendants' assets and appointing a
receiver. However, when the receiver and counsel for the FTC arrived at the corporate
defendant's premises pursuant to the court's order, hundreds of folders with labels
indicating that they contained records of defendants' most recent transactions were found
empty. In addition, five computers, including that ofthe corporate defendant's CFO,
were allegedly stolen the night before the receiver and counsel for the FTC arrived at the
premises. Furthermore, various third-party trade debtors of the corporate defendant froze
payments due to the corporate defendant, which resulted in extensive litigation over these
assets and ultimately cost the receivership estate tens of thousands of dollars.
h.

On August 9, 2006, in FTC v. Connelly, No. 8:06-cv-701 (C.D. Ca].

2006), the court issued an ex parte TRO with an asset freeze against one defendant, but
issued a noticed Order to Show Cause to two other defendants, ordering them to show
cause as to why their assets should not be frozen. Having notice that the FTC sought to
freeze their assets, the defendants nevertheless withdrew at least $800,000, some of
which was subject to the asset freeze, and most of which was never recovered.
1.

In FTC v. Universal Premium Servs., Inc., No. 2:06-cv-849 (C.D. Cal.

2006), a defendant and his wife withdrew over $45,000 from their joint personal bank
account, which the bank had not yet frozen, ·hours after he was personally served with an
ex parte TRO that included an asset freeze.
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J.

In FTC v. World Traders Ass 'n, No. 2:05-cv-591 (C.D. Cal. 2005),

notwithstanding an ex parte TRO, including an asset freeze, the lead defendants
appropriated $90,459 from a frozen bank account within one day of being served with the
TRO. Although the contempt resulted in subsequent criminal indictments, the money
was never recovered.
k.

In FTC v. Unicyber Tech. Inc., No. 2:04-cv-1569 (C.D. Cal. 2004), the

FTC obtained an ex parte TRO with asset freeze and appointment of a receiver. Shortly
after service of the TRO, the defendant directed his wife to violate the asset freeze by
transferring $405,000 of corporate funds to her father. With the assistance of the
receiver, the FTC was able to recover these funds.

1.

In FTC v. 4049705 Canada Inc., No. 1:04-cv-4694 (N.D. Ill. 2004),

Canadian authorities executed a search warrant on the business premises of Canadian
defendants who were engaged in telemarketing fraud. Thereafter, the FTC filed a
complaint and motion for a TRO with an asset freeze, providing notice to defendants.
The FTC discovered that the defendants had made several substantial money transfers
after receiving notice of the FTC's action, but before application of the asset freeze.
m.

In FTC v. QT, Inc., No. 1:03-cv-3578 (N.D. Ill. 2003), defendants, after

notice of a TRO with an asset freeze, withdrew and transferred more than $2 million
dollars from banks that had not yet received notice of the asset freeze.
n.

In FTC v. Physicians Healthcare Dey., Inc., No. 2:02-cv-2936 (C. D. Cal.

2002), the day after service of a TRO, Commission staff arrived at defendants' offices to
review business records but found that documents had been shredded and that computers
and other business records had been removed from the premises. Witnesses advised
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Commission staff that, on the day of the hearing, they observed defendants' employees
removing computers and other items from the premises. The records were never
recovered.
21.

Courts in this district regularly issue ex parte temporary restraining orders in

actions brought under Section 5(a) of the FTC Act. See, e.g., FTC v. Student Debt Doctor, LLC,
No. 17-cv-61937-WPD, Dkt. No.9 (entering ex parte TRO granting asset freeze, immediate
access, expedited discovery, and appointment of receiver); FTC v. Strategic Student Solutions

LLC, No. 17-cv-80619-WPD, Dkt. No. 10 (S.D. Fla. May 15, 2017) (same); FTCv.
DOTAuthority.com, Inc., No. 16-cv-62186-WJZ, Dkt. No. 29 (S.D. Fla. Sept. 19, 2016) (same);
FTC v. World Patent Marketing, No. 17-cv-20848-DPG, Dkt. No. 11 (same); FTC v. Mail Tree
Inc., No. 15-cv-61034-JIC, Dkt. No. 16 (same); FTC v. Centro Natural Corp., No. 14-cv-23879CMA, Dkt. No. 10 (same); FTCv. Partners in Health Care Ass'n, Inc., No. 14-cv-23109-RNS,
Dkt. No.9 (same); FTC v. FMC Counseling Srvcs., Inc., No. 14-cv-61545-WJZ, Dkt. No. 15
(same); FTC v. Marcus, No. 17-cv-60907-FAM, Dkt. No. 13 (May 9, 2017) (entering ex parte
TRO granting asset freeze, immediate access, and appointment of receiver); FTC v. Consumer

Collection Advocates Corp., No. 14-cv-62491-BB, Dkt. No. 10 (same); FTCv. Diversified
Educational Resources, LLC, No. 14-cv-62116-JIC, Dkt. No. 14 (entering ex parte TRO granting
asset freeze, immediate access, and expedited discovery); FTC v. 7051620 Canada, Inc., No.
14-cv-22132-FAM, 2014 WL 12039368 (S.D. Fla. June 12, 2014) (entering ex parte TRO
granting asset freeze); FTC v. Regency Fin. Serves., LLC, No. 15-cv-20270-DPG, Dkt. No.9
(same); FTCv. Dluca, No. 18-cv-60379-KMM, Dkt. Nos. 17,23 (same).
22.

For the above reasons, as contemplated by Fed. R. Civ. P. 65(b)(1), there is good

cause to believe that. immediate and irreparable damage will result, including the destruction of
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Defendants' records and the dissipation or concealment of assets, if Defendants receive advance
notice ofthe TRO Motion. Thus, it is in the interest of justice that this Court grants the motion
without notice.
23.

For the same reasons, there is good cause to believe that immediate and

· irreparable harm will result if any of the Defendants receive premature notice of the filing of this
action. Thus, the interests of justice would be served ifthe Court grants the Commission's
Emergency Ex Parte Motion to Temporarily Seal the Docket and Entire File.

I declare under penalty of perjury that the foregoing is true and correct.
Executed on

.t'lc.'JI )

, 2018, in Washington, DC.

Evan M. Mendelson, Special Bar No. A5502430
Federal Trade Commission
600 Pennsylvania Ave. NW
Mailstop CC-9528
Washington, DC 20580
(202) 326-3320; emendelson@ftc.gov
Fax: (202) 326-3197
Attorney for Plaintiff
FEDERAL TRADE COMMISSION

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