| DEBRA A. VALENTINE General Counsel DARREN A. BOWIE DAVID M. NEWMAN Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT
Plaintiff, the Federal Trade Commission ("FTC" or "Commission" ), by its undersigned attorneys, alleges as follows: 1. This is an action under Section 13(b) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 53(b), to secure injunctive relief and other equitable relief against defendants for their deceptive acts and practices and false advertising in violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.C. §§ 45(a) and 52. JURISDICTION AND VENUE 2. This Court has subject matter jurisdiction over plaintiff's claim pursuant to 15 U.S.C. §§ 45(a), 52, and 53(b), and 28 U.S.C. §§ 1331, 1337(a) and 1345. 3. Venue in the United States District Court for the Northern District of California is proper under 15 U.S.C. § 53(b) and 28 U.S.C. § 1391(b). THE PARTIES 4. Plaintiff FTC is an independent agency of the United States Government created by statute. 15 U.S.C. §§ 41 - 58. The FTC enforces Sections 5(a) and 12 of the FTC Act, 15 U.S.C. §§ 45(a) and 52, which prohibit, respectively, deceptive acts or practices, and false advertisements for food, drugs, devices, services or cosmetics, in or affecting commerce. The FTC is authorized under Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), to initiate federal district court proceedings to enjoin violations of the FTC Act, and to secure such equitable relief as may be appropriate in each case. 5. Defendant Sovo Tec Diagnostics, Inc. ("Sovo Tec") is a California corporation that currently conducts business at 2544 Center Road, Novato, Marin County, California 94947, and has conducted business at 526 Professional Center Drive, Novato, Marin County, California 94947. Sovo Tec has advertised, marketed, promoted, offered for sale, distributed or sold tests that purportedly test for infection with the human immunodeficiency virus ("HIV") in humans ("HIV tests"). HIV is the virus that causes acquired immunodeficiency syndrome ("AIDS"), an infectious disease characterized by immune system failure. Two strains of HIV have been identified: Type 1 and Type 2. Sovo Tec transacts or has transacted business in this District. 6. Defendant Ahmad Shirzadi ("Shirzadi") is President of Sovo Tec. He currently conducts business at 2544 Center Road, Novato, Marin County, California 94947, and has conducted business at 526 Professional Center Drive, Novato, Marin County, California 94947. Individually, or in concert with others, Shirzadi has directed, controlled, formulated, or participated in the acts and practices complained of below. He transacts or has transacted business in the Northern District of California. 7. Defendant Deborah Colby ("Colby") is General Manager of Sovo Tec. She currently conducts business at 2544 Center Road, Novato, Marin County, California 94947 and has conducted business at 526 Professional Center Drive, Novato, California 94947. Individually, or in concert with others, Colby has directed, controlled, formulated, or participated in the acts and practices complained of below. She transacts or has transacted business in the Northern District of California. COMMERCE 8. Defendants' course of trade is in or affecting commerce, within the meaning of Section 4 of the FTC Act, 15 U.S.C. § 44. DEFENDANTS' BUSINESS PRACTICES 9. Since at least 1996, and continuing thereafter, defendants have marketed HIV tests, including the "HIV 1 / 2 STAT-PAK Ultra Fast" and "HIV 1 / 2 Whole Blood" tests, to companies and individuals located in the United States and abroad. In turn, these companies and individuals have distributed defendants' HIV tests to consumers, or to others who have distributed the tests to consumers. 10. For purposes of Section 12 of the FTC Act, 15 U.S.C. § 52, defendants' HIV tests are "devices" as "device" is defined in Section 15 of the FTC Act, 15 U.S.C. §55. 11. In the course of marketing their HIV tests, defendants have represented that their tests provide accurate results. Defendants' Internet Web site contained the following statement: 11. We are committed to providing only the highest quality products to our worldwide customers and we are proud to offer the most accurate technology available today. DEFENDANTS' VIOLATIONS OF THE FTC ACT 12. Defendants have represented, expressly or by implication, that their HIV tests accurately detect the presence of HIV antibodies. In fact, in some instances, defendants' HIV test kits have not accurately detected the presence of HIV antibodies. Therefore, defendants' representation as set forth in this paragraph is false and misleading, and constitutes a deceptive act or practice and false advertising, in violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.C. §§ 45(a) and 52. CONSUMER INJURY 13. Defendants' violations of Sections 5(a) and 12 of the FTC Act, 15 U.S.C. §§ 45(a) and 52, have injured and will continue to injure consumers. Absent injunctive relief by the Court, defendants are likely to continue to injure consumers, and harm the public interest. THIS COURT'S POWER TO GRANT RELIEF 14. Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), authorizes this Court to issue injunctive and other equitable relief, to prevent and remedy any violations of any provision of law enforced by the FTC. PRAYER FOR RELIEF WHEREFORE, plaintiff FTC, pursuant to Section 13(b) of the FTC Act, 15 U.S.C. § 53(b) and this Court's own equitable powers, requests that this Court:
Respectfully submitted, DEBRA A. VALENTINE DARREN A. BOWIE DAVID M. NEWMAN Attorneys for Plaintiff DATED: September 18, 2000 |