Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 1 of 49 PageID: 1

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TRENTON VICINAGE

LESSLER & LESSLER Attorneys for Plaintiff 540 Old Bridge Turnpike South River, New Jersey 08882 Tel. (732) 254-5155 * * * * * * * * * * NEWTECHBIO INC.,

*

*

Plaintiff -againstSEPTICLEANSE, INC.; BRADLEY A. MARKIN a/k/a BRAD MARKIN; SABRINA GARCIA MARKIN a/k/a SABRINA GARCIA, SABRINA LOAIZA GARCIA, SABRINA G. GARCIA LOAIZA, JORGE RODRIGUEZ, and SABRIGL; LORI BETH KAPLAN MULTZ a/k/a LORI MULTZ, LORI BETH MULTZ, BETH WILSON and LORI KAPLAN; and ROBERT A. MARKIN, Defendants * * * * * * * * * * * *

* Hon. , U.S.D.J. Hon. , U.S.M.J. * Civ. No. * VERIFIED COMPLAINT FOR * INJUNCTIVE RELIEF and DAMAGES FOR * RACKETEERING, TRADE LIBEL AND UNFAIR COMPETITION, * and RELATED CLAIMS * * * * * With Jury Demand

Plaintiff Newtechbio Inc., by its attorneys, for its complaint against the defendants herein, on knowledge as to matters pertaining to itself and on information and belief as to all other matters, says:

Pertinent portions of exhibits have been highlighted.

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 PageCiv. No. PageID: 2 2 of 49 Newtechbio Inc. v. Septicleanse, Inc. et al
Verified Complaint

NATURE OF ACTION 1. This is an action for injunctive relief and damages necessitated by defendants' pattern of racketeering comprising a deceptive and unlawful Internet marketing scheme in the septic system chemicals industry, with wire fraud predicate acts in which they create fictitious disparaging reviews of the products of plaintiff and its legitimate competitors while promoting their competing products. JURISDICTION AND VENUE 2. This Court has original jurisdiction pursuant to 15 U.S.C. §1121(a), 15 U.S.C. §1125(a), 28 U.S.C. §§1331 and

1338(b), 18 U.S.C. §1962(c) and (d), and supplemental jurisdiction pursuant to 28 U.S.C. §1367(a). 3. This Court also has original jurisdiction pursuant to 28 U.S.C. § 1332, because the plaintiff and the defendants are citizens of different states and the amount in controversy exceeds $75,000, exclusive of interest and costs. 4. Defendants are subject to personal jurisdiction in New Jersey because they have purposefully directed their

tortious acts at plaintiff and have sold a substantial volume of unfairly and unlawfully competing products to consumers in the State of New Jersey. 2

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 PageCiv. No. PageID: 3 3 of 49 Newtechbio Inc. v. Septicleanse, Inc. et al
Verified Complaint

5. Venue is proper in this judicial district pursuant to 28 U.S.C. §1391. THE PARTIES 6. Plaintiff Newtechbio Inc. is a New Jersey corporation having its principal place of business at 4301 US Hwy 9 North, Main Building Rear, Howell, New Jersey 07731. 7. Defendant Septicleanse, Inc. is a Florida corporation with its principal office at 711 Commerce Way. Suite 5, Jupiter, Florida 33458. 8. Defendant Bradley A. Markin a/k/a Brad Markin

("Markin") is an individual who is a citizen of the State of Florida and resides at 103 Beachwalk Lane, Jupiter, Florida 33477. 9. Defendant Sabrina Garcia Markin a/k/a Sabrina Garcia, Sabrina Loaiza Garcia, Sabrina G. Garcia Loaiza, Jorge Rodriguez, and Sabrigl ("Garcia") is an individual who is a citizen of the State of Florida and resides at 103 Beachwalk Lane, Jupiter, Florida 33477. She is married to defendant Bradley A. Markin a/k/a Brad Markin. 10. Defendant Lori Beth Kaplan Multz a/k/a Beth, Beth

Wilson, Lori Multz, and Lori Beth Multz ("Multz") is an individual who is a citizen of the State of New York and 3

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 PageCiv. No. PageID: 4 4 of 49 Newtechbio Inc. v. Septicleanse, Inc. et al
Verified Complaint

resides

at

72

Van

Houten

Fields,

West

Nyack,

New

York

10994-2528. 11. Defendant Robert A. Markin ("Markin Sr.") is an individual who is a citizen of the State of Florida and resides at 6627 Seven Oaks Lane, Stuart, Florida 34997. OVERVIEW OF DEFENDANTS' MARKETING SCHEME 12. The individual defendants, acting in concert, (the unlawful "enterprise"), via Septicleanse, Inc. and the fictitious review websites as their primary instrumentality, use interactive product marketing websites with fictitious derogatory reviews of competing septic system chemical products abetted by fictitious derogatory "product review" websites, which together disparage competing products, namely those of plaintiff and its legitimate competitors, causing them to have suffered and continue to suffer substantial losses of sales and profits. 13. As part of its marketing scheme, the enterprise uses search engine techniques which elevate the fictitious product review websites to top search engine results positions. Those

"product review" websites are designed to mislead consumers searching the Internet for reliable information about septic system chemicals. The fictitious reviews are intended to, and 4

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 PageCiv. No. PageID: 5 5 of 49 Newtechbio Inc. v. Septicleanse, Inc. et al
Verified Complaint

do decrease the sales of plaintiffs and their legitimate competitors and thus increase defendants' sales. 14. Defendants' enterprise search engine techniques include the purchase of advertisements using the trademarks and trade names of plaintiff and its legitimate competitors as key words on various search engines including Google, Yahoo and Bing; and implanting those trademarks and trade names as metadata in defendants' websites. As a result, when a consumer conducts Internet research for plaintiff's trademarks such as NEWTECHBIO or NT-MAX on a search engine, defendants' advertisements and websites are displayed ahead of plaintiff's advertisements and website. FACTUAL BACKGROUND
Plaintiff's Business

15. Plaintiff, via its newtechbio.com website, markets chemicals throughout the United States for use in septic systems to improve performance and correct certain problems. Plaintiff's customers are primarily owners of homes with septic systems. 16. Plaintiff uses its common law trademark NT-MAX for its primary line of septic system products. This trademark has been used in Internet advertising by plaintiff for more than 5

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 PageCiv. No. PageID: 6 6 of 49 Newtechbio Inc. v. Septicleanse, Inc. et al
Verified Complaint

five years and have become associated by consumers with a high quality line of such products. 17. Plaintiff sells directly to the public via its website, and does not sell through distributors. 18. Plaintiff and its predecessor have been in business for more than five years, during which time sales of septic system chemicals have increased at the rate of approximately 40% per year. That growth came to a screeching halt and

plaintiff's sales dropped precipitously starting on June 14, 2012 when defendants' initial websites and review sites went online with advertisements on search engines Google, Yahoo and Bing.
Defendants O pted N ot to Exclude N ew Jersey From Their N ational Internet Advertising

19. Defendants were at all relevant times aware that plaintiff was marketing competing products, and that defendants' place of business was in New Jersey, as evidence by their inclusion of plaintiff's products on their sham review websites and initially on their principal marketing websites. 20. Each search engine offers advertisers the option to (i) include or exclude advertising from reaching specific states, and to (ii) exclude from search results relating to

6

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 PageCiv. No. PageID: 7 7 of 49 Newtechbio Inc. v. Septicleanse, Inc. et al
Verified Complaint

them, key words specified by the advertiser, known as "negative" key words. 21. Defendants could have excluded New Jersey from search results which would display their advertisements, by (i) excluding their advertisements from reaching the State of New Jersey by including that restriction on their Google advertising request and including all states but New Jersey on their Yahoo and Bing advertising requests, and/or (ii) opting to employ such negative key words as "New Jersey", "Jersey" and "NJ". 22. Defendants did not employ the foregoing state

exclusion options or negative key words to exclude New Jersey from being targeted by their advertisements, as shown by the fact that defendants' advertisements appear on Google, Yahoo and Bing search engine websites when a user enters any of the search terms "Septic Bacteria NJ", "Newtechbio NJ", "Septic maintenance NJ", "Septic maintenance NJ Newtechbio", "NT-MAX septic NJ", "NT-MAX septic New Jersey", "NT-MAX septic NJ", "septic bacteria NJ", "septic treatment NJ", "Newtechbio septic tank treatment New Jersey", and "septic treatment New Jersey".

7

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 PageCiv. No. PageID: 8 8 of 49 Newtechbio Inc. v. Septicleanse, Inc. et al
Verified Complaint

Defendants' M arketing and Fictitious Review W ebsites

23. On or about June 14, 2012 defendants' enterprise operates septic system chemicals marketing websites

www.septicleanse.com and www.bestsepticproducts.com, auxiliary marketing/fictitious review websites www.septictreatments.net, and fictitious review websites www.bestseptictreatments.com, www.homesepticproducts.com, www.sewertreatment.net, and

www.cloggedsepticsystem.com became active, all at about the same time. 24. Links to defendants' review websites are provided on their marketing websites. 25. Prior to June 14, 2012 there were no negative reviews of any of plaintiff's septic products on the Internet. 26. None of the defendants has ever purchased any of plaintiff's products under his, her or its own name. 27. Plaintiff has no reason to believe any of defendants ever purchased any of plaintiff's products indirectly or under an alias or assumed name. 28. Defendants have never tested any of plaintiffs products, or had the same tested by a third party.

8

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 PageCiv. No. PageID: 9 9 of 49 Newtechbio Inc. v. Septicleanse, Inc. et al
Verified Complaint

Defendants' Fictitious Derogatory and Deceptive Reviews

29. These websites contained and/or still contain intentionally false, disparaging and deceptive information and rankings concerning the septic chemicals of plaintiff and its legitimate competitors, examples of which are: a. "What happened when we tested it? We were excited to see how it worked. Our tester was not so pleased." [referring to NT-MAX, Exhibit A]. b. "However, after administering a shock, and beginning the maintenance treatment, very little improvement was seen. We had a hard time convincing our tester not to have

his septic system pumped out, and quitting the trial. Luckily, he was convinced to continue the treatment for 4 weeks. After

the 4 week trial, he admitted he did get an improvement in the speed at which his drains would flow about 20%. Possible with However,

continued use, the system would have been restored.

after a month of using the NT Max, his system was not at an acceptable level of function. He ended up having the system pumped out, at a cost of a few hundred dollars." [referring to NT-MAX, Exhibit A]. c. "On the positive side, the tester has continued to use NT Max (After pumping the system). 9 His opinion,

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 10 ofNo. PageID: 10 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

however, was that this product was NOT the best for restoring a system that is having problems." [Exhibit A]. d. "iiijj I believe our home benefitted from using this septic treatment. However, it was nowhere near what we expected, in terms of speed of showing results, and also in value. We ended up having to pump our system out, in order for However, this product has worked

it to get back to normal.

very well to keep our system maintained. For that purpose, it is very good." [referring to NT-MAX, Exhibit B]. e. "iijjj I did not get any results on my drain field from using this septic cleaner. it did a thing. I honestly don't think

However, we dissolved some of it in a cup of

water, and poured it down our kitchen sink. It now seems to drain much faster. So, as far as a septic treatment, this isn't good." [referring to NT-MAX, Exhibit B]. f. "iijjj Not a product I would buy again. We

have been using it for 3 weeks, and our yard is still a muddy, backed up mess, and it smells like a sewer." [Exhibit B]. g. "iijjj We haven't noticed any help yet, for our septic problem. Our leach field was clogged up and waste water was backing up into the house. We still have a problem, but maybe not as severe. I'm not sure we are getting anywhere 10

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 11 ofNo. PageID: 11 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

with this product, but we don't have the money to get our system replaced. We will just have to stay the course and see if it improves soon." [Exhibit B]. h. "iiijj We still have a smell, and the drain is still slow. Hopefully the improvement continues before we

have to buy more." [Exhibit B]. i. "iijjj I think maybe our very cold temperatures have prevented this product from working. We got no Maybe

results from pouring it directly into our septic tank.

the cold kills off this type of bacteria? I don't know, but nothing has resulted from using this." [Exhibit B]. j. "We would be testing NT Max on a troubled, backed up and flooded system so we would definitely be needing both the shock and the monthly packets. We were a bit confused by the information about whether we should purchase the liquid shock or if just flushing a couple of the ordinary monthly packets would do the trick. We decided at long last to use the

most powerful options that NT Max had available to us and see how it would compare with our Best Septic Treatments. To be It

honest, we were skeptical about using a liquid treatment.

is fairly well documented that liquid treatments are a thing of

11

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 12 ofNo. PageID: 12 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

the past, especially when you consider the amount of water consumption nowadays." [Exhibit C]. k. "In our testing of NT Max we saw those steps happening, not as fast as our Best Septic Treatment, but they did happen. In our opinion, it was a bit pricey for the

results we got, but then again we did purchase their most powerful treatment, so perhaps the price was average as far as the market goes". [Exhibit C]. l. "While NT Max certainly has a fantastic

reputation online and it does deliver long term results, it didn’t quite work as quickly or completely as our top rated brands." [Exhibit C]. m. "See How NT Max Compared to Our Top 8 Septic Treatment Comparison Chart." [Exhibit C]. n. "If there was any drawback to New Tech Bio, it is the fact that the shock is in liquid form, or at least it appears to be. Liquid septic treatments just don’t work Regardless of

anymore or at least as well as they once did.

concentration, liquids tend to flush out of the system the first time a load of laundry is done. Not something you want

to have happen after you spent hundreds of dollars on a shock treatment." [Exhibit D]. 12

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 13 ofNo. PageID: 13 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

o. "Overall, if you are considering NT Max as your septic option, you have found yourself a leading brand. While we do not rate it as well as our Best Septic Treatment." [Exhibit D]. p. "We did have a bit of a concern with the product options that NT Max offered. The monthly treatments

seemed pretty straightforward and we were happy to see the use of the easy flushable packets. ment troubled us a bit. But the liquid 'shock' treat-

First of all it is liquid, which But also due to the

flushes through the system very quickly.

size of the treatment, it was somewhat costly, not unfairly so but significant. This may make it difficult for a homeowner on a fixed income or ones that have a mild septic problem to get the extra boost of bacteria from a shock treatment without significant up front investment. It should be noted that NT

Max may have an alternate treatment designed for these circumstances; however we were not able to locate it." [Exhibit E]. q. "We consider NT Max a quality treatment and a professionally run operation. While it didn’t rate as well as

our best septic treatment, if you feel comfortable with their options." [Exhibit E].

13

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 14 ofNo. PageID: 14 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

r. "See how New Tech Bio Compared by reading our Septic Treatments Reviewed." [Exhibit E]. s. "New Tech Bio Testimonials: “I used this product, followed the directions and if I am being honest, I am not sure if it worked. From reading these other testimonials,

I think maybe I may have been expecting too much, but I don’t think it did a whole lot. That’s my two cents. For what is

worth. Dan, Ontario, CA." [Exhibit F]. t. "For me, I ultimately did not choose to purchase NT Max because the prices for a shock as well as a treatment, both of which I needed, was a bit more than I wanted to spend. Also, the NT Max shock does not come in the same

flushable, granular packages that their monthly treatment does, instead it is a heavy liquid container. That is just not ideal for someone in my predicament." [Exhibit G]. u. "Beware - most septic system treatments do NOT work. If you are thinking of buying a septic system treatment product that is NOT carried below, you should reconsider. tried it, and it didn’t work". [Exhibit H]. 30. All of the aforementioned reviews are fictitious and were created by defendants. We

14

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 15 ofNo. PageID: 15 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

31. Even those fictitious reviews that don't specifically mention plaintiff Newtechbio or its NT-MAX product are very damaging. For example, providing a purported review list

of "top ten" or "top eight" products not including NT-MAX or Newtechbio results in loss of sales by plaintiff. Even worse

is the statement that if a product is not on the defendants' list (which did not include plaintiff's product), one should reconsider a decision to buy it, since it was tried and does not work. See Exhibit H in which defendants stated: "If you

are thinking of buying a Septic System Treatment Product that is NOT carried below, you should Reconsider. We tried it, and it didn't work." 32. Defendants' paid advertisements that appear when typing the words "Newtechbio" or "NT-MAX" into search engines state "Avoid That Septic Product" and "Septic Treatment Scams" [Exhibit I]. 33. Prior to the initial Internet public appearance of defendants' scheme on or about June 14, 2012, entering phrases into a search engine such as "newtechbio scam", "nt-max sham" or "newtechbio fraud" would yield no negative results to a consumer which might conduct such a search. Now there are

15

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 16 ofNo. PageID: 16 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

thousands of negative reviews, all located on defendants' websites. 34. Using a dash (-) in a search to remove defendants' sham websites from appearing in search results shows that there are no true negative reviews of plaintiff's products. 35. The defamatory statements planted by defendants are intended to artificially elevate their review websites to high search results rankings. As a result, these fictitious review

sites displace positive commentary about plaintiff and its septic system products on search engine results pages. 36. Upon seeing the misleading statements in sponsored advertisements and fictitious reviews, customers and prospective customers are lured away from plaintiff's website and to defendants' marketing websites. 37. Although some of the derogatory reviews have been removed from some of defendants' websites, many still remain. 38. Plaintiff septic attempted to purchase from defendants' defendants' and

Septicleanse

products

www.septicleanse.com,

www.homesepticproducts.com,

www.bestsepticproducts.com websites. The corresponding orders were accepted but subsequently canceled without explanation,

16

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 17 ofNo. PageID: 17 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

and the purchase price was credited back to the corresponding credit card.
Defendants' Purchase of Key W ords of the Tradem arks and Trade N am es of Plaintiff and Its Legitim ate Com petitors

39. Defendants have paid search engines Google, Yahoo and Bing for prominent advertising locations above and adjacent to actual search results. By way of example, true and accurate printouts of Internet key word searches on Google for plaintiff's trade name and trademark Newtechbio and its trademark NT-MAX are provided as Exhibit I. 40. The prominently displayed keyword advertisements of defendants significantly and adversely affect sales and the reputation of plaintiff and its NT-MAX brand.
Defendants' Display of Plaintiff's Product on Their W ebsite and O ffer to Sell the Sam e

41. Although none of the defendants is a distributor of plaintiff's septic products and none of them have purchased such products, their www.bestsepticproducts.com and

www.homesepticproducts.com websites offered plaintiff's NT-MAX septic system products for sale. 42. Plaintiff attempted to purchase purported NT-MAX products from defendants' www.bestsepticproducts.com and

www.homesepticproducts.com websites. The corresponding orders

17

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 18 ofNo. PageID: 18 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

were accepted but subsequently canceled without explanation, and the purchase price was credited back to the corresponding credit card. 43. Defendants have removed display of plaintiff's NTMAX product from their www.bestsepticproducts.com and

www.homesepticproducts.com websites but continue to include it on some of their sham review sites. 44. All of the aforementioned activities of defendants via their websites were conducted for the benefit of, and with the knowledge and participation of each of the individual defendants, who exercised control over the aforementioned websites.
Plaintiff's Continuing Dam ages

45.

In

the

four

days

after

defendants'

marketing

websites and fictitious review websites became active on the Google, Yahoo and Bing search engines, plaintiff's sales of septic system products dropped about 68% as compared to sales during the corresponding period of 2011. 46. To date, plaintiff has lost sales in an amount well in excess of $310,000 as compared to sales during the corresponding period in 2011, with an accompanying substantial loss

18

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 19 ofNo. PageID: 19 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

of profits; and continues to lose sales and profits on a daily basis, the full extent of which cannot be predicted. 47. Defendants' unlawful acts via their enterprise have resulted in the creation of thousands of web pages containing false derogatory statements concerning plaintiff's septic

system products, resulting in permanent and substantial damage to plaintiff's reputation and loss of good will. 48. Defendants' unlawful acts have caused confusion among consumers as to the source of the NT-MAX brand of septic system products, to the detriment of plaintiff. 49. The wrongful acts of defendants have been willful, deliberate, intended to benefit defendants at plaintiff's expense, and without just cause or excuse.
Roles of Defendants in Furtherance of the Enterprise

50. Markin is the President and a Director of defendant Septicleanse, Inc. enterprise. 51. Markin, Sr. is a shareholder and director of Septicleanse, Inc. He participates in management of the part of the enterprise associated with Septicleanse, Inc. 52. Multz is the Treasurer and a Director of Septicleanse, Inc., which utilizes the marketing websites of the 19 He manages the associated part of the

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 20 ofNo. PageID: 20 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

enterprise.

She ships its products to customers from her home

in West Nyack, New York. 53. Garcia is the wife of Markin. She registers and

develops the marketing and sham review websites used by the enterprise and posts its fictitious reviews.
Prior and Current O ther Acts of Racketeering by Defendants; Face Cream s

54. Defendant Multz has been convicted of criminal RICO activity, namely racketeering conspiracy under 18 U.S.C.

§1962(d), in United States v. Betonsports PLC (U.S.D.C. E.D.Mo. 2006, Closed 2011), Case No. 4:06-cr-00337-CEJ. involved an online illegal gaming operation. 55. The pattern of racketeering activity of defendants in the present action is essentially the same as their ongoing pattern of racketeering activity in the Internet sale of face cream products. They operate through Dermagist, Inc. (and That activity

formerly operated through Dermajuv, LLC, and Florida Bio Life Styles Group, LLC) via their marketing website dermagist.com and dozens of fictitious review websites such as

www.skinbrighteners.net which contain derogatory reviews of competing brands.
Linkage Betw een w w w .derm agist.com and www.sewertreatm ent.net W ebsites

20

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 21 ofNo. PageID: 21 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

56.

Defendants'

www.skinbrighteners.net

(www.dermagist.com) website contains a hidden web page which (when visible) displays their septic system products. That web page is linked to their www.sewertreatment.net website so that when a consumer clicks on a corresponding item on the latter website, the hidden page on the www.skinbrighteners.net website is accessed and appears as a page on the www.sewertreatment.net website. This makes it easy for defendants to create multiple

septic products websites without having to repeatedly create the aforementioned web page on each one. FIRST COUNT Participation in a RICO Enterprise through a Pattern of Racketeering Activity 18 U.S.C. §§1961(5), 1962(c) 57. Plaintiff repeats the allegations of the preceding paragraphs as though set forth at length herein. 58. Beginning on or about June 14, 2012 and continuing to the present time, the individual defendants associated in a RICO enterprise whose activities affected interstate commerce and constituted wire fraud. 59. During the ten (10) calendar years preceding the date of this Verified Complaint, all individual defendants did cooperate jointly and severally in the commission of two or

21

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 22 ofNo. PageID: 22 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

more of the RICO predicate acts that are itemized at 18 U.S.C.§1961(1)(B), including acts of wire fraud (violation of 18 U.S.C. §1343), and did so in violation of 18 U.S.C. 1962(c) ("Prohibited activities"). 60. All individual defendants did commit two or more of the offenses described above and they each continue to engage in Prohibited Activities via the enterprise. Their aforemen-

tioned respective racketeering activities are continuing, have caused and are causing damage to plaintiff and its legitimate competitors and are deceiving consumers, and will continue to cause such damage and deceive consumers unless and until stopped by this Court. 61. As a result of the individual defendants' unlawful activities as described above, plaintiff has suffered and will, unless defendants are restrained by this Court, continue to suffer irreparable injury for which there is no adequate remedy at law. SECOND COUNT Trade Libel and Unfair Competition 62. Plaintiff repeats the allegations of the preceding paragraphs as though set forth at length herein.

22

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 23 ofNo. PageID: 23 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

63. Defendants' activities constitute defamation of plaintiff and its business, trade libel, and unfair competition. 64. Said activities were and are willful, malicious, and intended to damage plaintiff and its trademarks and trade names so as to cause enrichment of defendants. 65. As a result of defendants' libelous and unfairly competitive activities, plaintiff has suffered and will continue to suffer a loss of sales and profits, for which losses defendants are liable. 66. As a result of defendants' unlawful activities as described above, plaintiff has suffered and will, unless defendants are restrained by this Court, continue to suffer irreparable injury for which there is no adequate remedy at law. THIRD COUNT Intentional Interference With Prospective Economic Advantage 67. Plaintiff repeats the allegations of the preceding paragraphs as though set forth at length herein. 68. Prior to commencement of defendants' aforementioned activities in the septic system products marketplace, plaintiff had business or prospective business relationships with its

23

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 24 ofNo. PageID: 24 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

customers and prospective customers, and defendants knew such relationships existed. 69. Through defendants' improper websites and falsified and untrue content thereon, and their misuse of search engines as described above, defendants intentionally interfered with plaintiff's business relationships. 70. Defendants' utilized dishonest, unfair, and improper means to intentionally interfere with plaintiff's business relationships in the septic system products market. 71. As a result of defendants' unlawful interference with plaintiff's business and prospective business relationships, those relationships have been harmed, resulting present and future losses of sales and profits, for which losses defendants are liable. 72. Said activities were and are willful, malicious, and intended to damage plaintiff and its trademarks and trade names so as to cause enrichment of defendants. 73. As a result of defendants' unlawful activities as described above, plaintiff has suffered and will, unless defendants are restrained by this Court, continue to suffer irreparable injury for which there is no adequate remedy at law.

24

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 25 ofNo. PageID: 25 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

FOURTH COUNT Trademark Infringement 74. Plaintiff repeats the allegations of the preceding paragraphs as though set forth at length herein. 75. Defendants have used and are using plaintiff's common law trademark NT-MAX in a manner likely to cause confusion as to the source of products with which those trademarks are associated. 76. Said activities were and are willful, malicious, and intended to damage plaintiff and its trademarks and trade names so as to cause enrichment of defendants. 77. As a result of defendants' libelous activities, plaintiff has suffered and will continue to suffer a loss of sales and profits, for which losses defendants are liable. 78. As a result of defendants' unlawful activities as described above, plaintiff has suffered and will, unless defendants are restrained by this Court, continue to suffer irreparable injury for which there is no adequate remedy at law. FIFTH COUNT False Advertising - Violation of 15 U.S.C. §1125(a) 79. Plaintiff repeats the allegations of the preceding paragraphs as though set forth at length herein.

25

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 26 ofNo. PageID: 26 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

80. Defendants have misrepresented the nature, characteristics, and qualities of plaintiff's septic system products in connection with their commercial advertising and promotion of defendants' competing products. 81. Plaintiff has an interest in being protected against defendants' false, deceptive and misleading claims, reviews and statements, and has been and will continue to be damaged by their aforementioned unlawful activities. 82. Defendants' acts constitute commercial speech made for the purpose of influencing consumers to buy defendants' septic system products, which is disseminated to the relevant purchasing public. 83. Defendants' unlawful conduct constitutes unfair competition and false designation of origin or sponsorship in violation of the Lanham Act section 43(a), 15 U.S.C. § 1125(a). 84. Said activities were and are willful, malicious, and intended to damage plaintiff and its trademarks and trade names so as to cause enrichment of defendants. 85. As a result of defendants' false designations of origin and related unlawful conduct as described above, plaintiff has suffered and will continue to suffer a loss of sales and profits, for which losses defendants are liable. 26

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 27 ofNo. PageID: 27 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

86. As a result of defendants' unlawful activities as described above, plaintiff has suffered and will, unless defendants are restrained by this Court, continue to suffer irreparable injury for which there is no adequate remedy at law. RELIEF REQUESTED A, On the First Count, a judgment or order: a. Declaring that all individual defendants, jointly and severally, acting in concert, have formed and operated a RICO enterprise, and have engaged and are engaging in racketeering activities prohibited by 18 U.S.C. §1962(c). b. Requiring the individual defendants and

Septicleanse, Inc. to immediately shut down all of their websites that market septic system chemicals or that purport to review the septic system chemical products of others. c. Temporarily and permanently enjoining and restraining defendants and their directors, officers, employees, agents, servants and all other persons in active concert or participation with them, from (i) acquiring, maintaining or operating, directly or indirectly, any business or enterprise which purports to review the septic system products of others, (ii) generating, sending, displaying or posting any document or information comprising or containing inaccurate, deceptive, 27

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 28 ofNo. PageID: 28 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

misleading or derogatory information concerning the septic system products of others, (iii) stating or implying that listed septic system chemical products of others than plaintiff are preferred or are superior to those not listed, (iv) stating or implying that only those septic system products of others than plaintiff that are listed provide acceptable performance, or (v) stating or implying that one or more of plaintiff's septic system products has been tested. d. Requiring defendants to account for all sales of septic system products on and after June 14, 2012 and all resulting gross and net profits, including production of all order and sales records including invoices, bank statements, records of products ordered by defendants including invoices, product order shipping records, and related financial records of defendants. e. Requiring defendants, jointly and severally, to pay plaintiff all gross profits derived by them from their sale of septic system products, less the actual cost of goods sold but without any other deductions. f. Requiring defendants, jointly and severally, to pay plaintiff three times the actual amount of profits lost

28

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 29 ofNo. PageID: 29 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

by plaintiff as a result of defendants' aforementioned activities. g. Requiring defendants, jointly and severally, to pay plaintiff all legal expenses incurred by plaintiff in the institution and prosecution of this action, as well as post-judgment legal expenses incurred by plaintiff in collecting the amount awarded by this Court. h. Granting plaintiff such other or further relief as may be appropriate under the circumstances. trial; B. On the Second, Third, Fourth and Fifth Counts, a judgment or order: a. Requiring defendants to immediately shut down all of their websites that market septic system chemicals or that purport to review the septic system chemical products of others. b. Temporarily and permanently enjoining and restraining defendants and their directors, officers, employees, agents, servants and all other persons in active concert or participation with them, from (i) acquiring, maintaining or operating, directly or indirectly, any business or enterprise which purports to review the septic system products of others, (ii) generating, sending, displaying or posting any document or 29

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 30 ofNo. PageID: 30 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

information comprising or containing inaccurate, deceptive, misleading or derogatory information concerning the septic system products of others, (iii) stating or implying that listed septic system chemical products of others are preferred or are superior to those not listed, (iv) stating or implying that only those septic system products of others that are listed provide acceptable performance, or (v) stating or implying that one or more of plaintiff's septic system products has been tested. c. Requiring defendants to account for all sales of septic system products on and after June 14, 2012 and all resulting gross and net profits, including production of all order and sales records including invoices, bank statements, records of products ordered by defendants including invoices, product order shipping records, and related financial records of defendants. d. Requiring defendants, jointly and severally, to pay plaintiff all gross profits derived by them from their sale of septic system products, less the actual cost of goods sold but without any other deductions.

30

Case Newtechbio Inc. v. Septicleanse, Inc. et al 1 Filed 09/19/12 Page 31 ofNo. PageID: 31 3:12-cv-05882-MAS-TJB Document Civ. 49
Verified Complaint

e. Requiring defendants, jointly and severally, to pay plaintiff the actual amount of profits lost by plaintiff as a result of defendants' aforementioned activities. f. Awarding plaintiff punitive damages against defendants, jointly and severally. g. Requiring defendants, jointly and severally, to pay plaintiff all legal expenses incurred by plaintiff in the institution and prosecution of this action, as well as post-judgment legal expenses incurred by plaintiff in collecting the amount awarded by this Court. h. Granting plaintiff such other or further relief as may be appropriate under the circumstances.

JURY DEMAND Plaintiff hereby demands trial by jury as to all issues now or hereafter involved in the above action. LESSLER & LESSLER Attorneys for Plaintiff 540 Old Bridge Turnpike South River, New Jersey 08882 Tel (732) 254-5155 Fax (732) 254-7630 E-Mail Lessler@Compuserve.com

a s/
Dated: September 19, 2012 Arthur L. Lessler (AL6649) 31

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 32 of 49 PageID: 32

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 33 of 49 PageID: 33

EXHIBIT A

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 34 of 49 PageID: 34

EXHIBIT B

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 35 of 49 PageID: 35

e 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 36 of 49 PageID

EXHIBIT C

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 37 of 49 PageID: 37

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 38 of 49 PageID: 38

EXHIBIT D

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 39 of 49 PageID: 39

EXHIBIT E

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 40 of 49 PageID: 40

EXHIBIT F

se 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 41 of 49 PageID:

EXHIBIT G

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 42 of 49 PageID: 42

EXHIBIT H

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 43 of 49 PageID: 43

EXHIBIT I

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 44 of 49 PageID: 44

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 45 of 49 PageID: 45

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 46 of 49 PageID: 46

ase 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 47 of 49 PageID: 4

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 48 of 49 PageID: 48

Case 3:12-cv-05882-MAS-TJB Document 1 Filed 09/19/12 Page 49 of 49 PageID: 49

Sign up to vote on this title
UsefulNot useful