FORT MYERS (Florida Record) – Three Florida companies accused of tech support scamming by the Federal Trade Commission (FTC) and the state of Florida won't get a jury trial, according to an order recently handed down by a federal judge in the U.S. District Court for the Middle District of Florida, Fort Myers Division.
New counsel for the defense, the third hired since the case was filed last spring, missed an October deadline to respond to a motion opposing their demand for a jury trial and has never explained why, U.S. Magistrate Judge Mac R. McCoy said in his 16-page order issued June 13. Instead, the defense has pointed out that current counsel wasn't admitted before the court until December, that multiple depositions have been filed and that the court granted previous counsel motion to withdraw in January.
"Defendants do not expressly state that any of these reasons caused the delay from Dec. 19, 2017, to Feb. 1, 2018," McCoy said in his order. "Instead, defendants merely list these facts, presumably to support an inference that their new counsel was not responsible for any delay. These facts, however, do not explain the over six-week delay in defendants' response."
In his order, McCoy granted an FTC and Florida motion to strike a defense request for a jury trial and denied a defense request to oppose that motion.
The case was filed in May 2017 by the FTC and Florida Attorney General Pam Bondi's office under seal against Vylah Tech, Express Tech Help, Tech Crew Support and the companies' owners and managers Angelo J. Cupo, Robert Cupo and Dennis Cupo.
Since McCoy issued his order, a status report has been filed with the court regarding a motion to unfreeze the company's assets.
The case is one of almost 30 law enforcement actions under "Operation Tech Trap," a coordinated effort involving the FTC and law enforcement agencies in the U.S. to combat alleged tech support scams. In the Vylah/Express Tech/Tech Crew Support case, the FTC and Bondi allege that defendants and their companies tried to deceive unwary consumers into buying unnecessary tech support services, a violation of the Federal Trade Commission Act and Florida's Deceptive and Unfair Trade Practices Act.
In June 2017, defendants in the Vylah/Express Tech/Tech Crew Support case filed their answer to the complaint and demanded a jury trial. "Later, defendants reiterated their jury trial demand as part of the parties' joint case management report," McCoy said in the background portion of his order."The case management report, however, indicated that the issue was contested. Defendants subsequently obtained new counsel."
In August, defendants again filed a demand for a jury trial but later missed an October deadline to file a response to the FTC and Florida motion to strike that demand. "Defendants did not file a response in opposition, nor did they seek an extension of time to respond," the order said. "Subsequently, defendants again obtained new counsel."
In February, the new defense counsel asked for more time to file a response to the motion to strike the demand for a jury trial while counsel for the FTC and Florida maintained the defense should not be given a pass to ignore deadlines and other court rules. In their own response, the FTC and Florida argued they would be prejudiced if defendants in the case "are allowed to ignore the rules without a valid explanation," that the defense has been "silent" about why it missed the October deadline and that the defense didn't have a good reason for missing the deadline.
Those arguments by the FTC and Florida are "compelling," McCoy said in his order. "In evaluating this issue, the court notes that it has the authority to apply deadlines found in the local rules and the authority to sanction noncompliance," McCoy continued in his order.
"Additionally, defendants have failed to explain their failure to respond timely. Under the circumstances, allowing an untimely response here would serve only to incentivize future noncompliance with court deadlines. The court cannot abide such a result," McCoy said in the ruling.
In concluding remarks, McCoy said, "The court hereby strikes defendants’ jury demand and will re-designate this action for a non-jury trial."