The Attorney General of Texas has accused Comfort & Caring Home Health Care Services, America Home Health Care Services, and three individuals with scheming to administer shots that they falsely promoted as flu vaccine. A nurse working with the companies had notified the FBI about the scheme in which approximately 1,600 Exxon Mobil employees were inoculated. Iyad Muhammad (Eddie) Abu El Hawa, Martha Denise Gonzales, and Hossan (Sammy) El Hallak have been charged with violating the Texas Deceptive Trade Practices Act, which carries penalties of up to $20,000 per violation plus relinquishment of money they collected through the scheme. A Texas court has frozen the alleged perpetrators’ assets.
STATE OF TEXAS,
IYAD MUHAMMAD ABU EL HAWA A/K/A
IN THE DISTRICT COURT OF
HARRIS COUNTY, TEXAS
______ JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL VERIFIED PETITION AND APPLICATION
FOR EX PARTE TEMPORARY RESTRAINING ORDER, TEMPORARY
INJUNCTION AND PERMANENT INJUNCTION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, the STATE OF TEXAS, Plaintiff, acting by and through Attorney General of Texas GREG ABBOTT (hereinafter, “Attorney General”), on behalf of the State of Texas, and on behalf of the interest of the general public of the State of Texas, and complains of IYAD MUHAMMAD ABU EL HAWA a/k/a EDDIE ABU EL HAWA; MARTHA DENISE GONZALES a/k/a DENISE GONZALES; HOSSAN EL HALLAK a/k/a SAMMY EL HALLAK. The Attorney General would respectfully show the Court as follows:
DISCOVERY CONTROL PLAN
1. Discovery shall be conducted under a LEVEL 2 discovery control plan pursuant to rule 190.3 of the Texas Rules of Civil Procedure.
2. This action is brought by the Attorney General, through his Consumer Protection and Public Health Division, in the name of the STATE OF TEXAS , under the authority granted to him pursuant to Section 17.47 of the Texas Deceptive Trade Practices Act–Consumer Protection Act, TEX. BUS. & COM. CODE ANN. §17.41 et seq. (hereinafter, “DTPA”), upon the grounds that Defendants have engaged in false, misleading, and deceptive acts and practices in the conduct of trade or commerce as defined and declared unlawful by Section 17.46 (a) and (b) of the DTPA.
3. Iyad Muhammad Abu El Hawa a/k/a Eddie Abu El Hawa is an individual residing in Harris County, Texas, and may be served with process at 10101 Harwin Drive, Suite 370, Houston, Texas 77082.
4. Martha Denise Gonzales a/k/a Denise Gonzales is an individual residing in Harris County, Texas, who may be served with process at 3711 Garth Road, #304, Baytown, Texas 77521.
5. Hossan El Hallak a/k/a Sammy El Hallak is an individual residing in Harris County, Texas, who may be served with process at 10101 Harwin Drive, Suite 370, Houston, Texas 77082.
6. Venue of this suit lies in Harris County, Texas, for the following reasons:
A. Under TEX. CIV. PRAC. & REM. CODE ANN. §15.002(a)(1), venue is proper insofar as all or a substantial part of the events or omissions giving rise to the claims alleged herein occurred in Harris County, Texas;
B. Venue is also proper in Harris County, Texas, under TEX. CIV. PRAC. & REM. CODE ANN. §15.002(a)(2), because the individual Defendants were residents of Harris County, Texas, at the time the causes of action accrued;
C. Venue is also proper in Harris County, Texas, under TEX. CIV. PRAC. & REM. CODE ANN. §15.002(a)(3), because Defendants’ principal offices are located in Harris County, Texas; and
D. Venue is also proper under the DTPA §17.47(b), because the Defendants’ principal places of business are located in Harris County, Texas.
7. Because Plaintiff State of Texas has reason to believe that Defendants have engaged in, and will continue to engage in the unlawful practices set forth below, Plaintiff State of Texas has reason to believe Defendants have caused and will cause immediate and irreparable injury, loss, and damage to the State of Texas, and its citizens, and will also cause adverse effects to legitimate business enterprises which lawfully conduct trade and commerce in this State. Therefore, the Consumer Protection and Public Health Division of the Office of the Attorney General of the State of Texas believes and is of the opinion that these proceedings are in the public interest.
TRADE AND COMMERCE
8. Defendants have, at all times described herein, engaged in conduct constituting “trade” and “commerce,” as those terms are defined in §17.45(6) of the DTPA.
ACTS OF AGENTS
9. Whenever in this petition it is alleged that Defendants did any act or thing it is meant that:
A. Defendants performed or participated in such act or thing, or
B. Defendants’ officers, agents, trustees, employees, representatives, or successors performed or participated in the act on behalf of and under the authority of the Defendants or otherwise acted under the guidance and direction of Defendants.
NOTICE BEFORE SUIT NOT GIVEN
10. Pursuant to §17.47(a) of the DTPA, contact has not been made with the Defendants herein to inform them of the unlawful conduct alleged herein, for the reason that Plaintiff is of the opinion that there is good cause to believe that such an emergency exists that immediate and irreparable injury, loss, or damage would occur as a result of such delay in obtaining a temporary restraining order, and that Defendants would destroy relevant records and secrete assets if prior notice of this suit were given.
SPECIFIC FACTUAL ALLEGATIONS
11. On Friday, October 21, 2005, Sergeant Stormy Kelly (hereinafter, “Sgt. Kelly”), an investigator with Medicaid Fraud Control Unit (hereinafter, “MFCU”) of the Office of the Attorney General of Texas, received a phone call from the United States Attorneys’ Office advising her that a nurse informant had notified the FBI about a possible health fraud scam that may have a Medicaid fraud link. The nurse stated to the FBI that he was employed by a home health care company named Comfort & Caring Home Health Care Services (hereinafter, “Comfort & Caring”),whose owner and operator is Defendant Eddie Abu El Hawa, to administer flu shots at the Exxon/Mobil facility located in Baytown, Texas, on October 19-20, 2005.
12. At some point, while administering flu shots, the nurse informant asked another employee of Comfort & Caring named Sammy El Hallak for the lot number to the vaccines for the purpose of documentation. According to the nurse informant, Defendant Sammy El Hallak seemed unfamiliar with the concept of using lot numbers. Further, Sammy El Hallak stated to the nurse informant that he had stayed up late the night before filling syringes and had pricked his fingers with the syringes in the process.
13. The nurse informant was concerned by Defendant Sammy El Hallak’s statements and removed two syringes from the Exxon/Mobil site and took the syringes to the FBI and reported what Sammy El Hallak had told him. The nurse informant estimated that approximately 1,600 vaccinations were given during the two-day period.
14. After the meeting with the nurse informant, the FBI contacted Exxon/Mobil and was told that the health fair had been arranged by Defendant Denise Gonzales and that the company she worked for was America Home Health Care Services, which is also owned and operated by Defendant Eddie Abu El Hawa.
15. Based on the information provided by the U.S. Attorneys’ Office, MFCU initiated an investigation to determine any possible Medicaid nexus.
16. On Friday afternoon, October 21, 2005, State investigators with the Texas Department of State Health Services, along with FBI agents, interviewed Defendant Denise Gonzales in Baytown, Texas.
17. At approximately the same time, another State investigator, a Food and Drug Administration agent, and an FBI agent went to Defendant Eddie Abu El Hawa’s office on Harwin Drive to conduct an interview. Upon arriving, they observed Eddie Abu El Hawa disposing of approximately thirtytwo (32) syringes containing liquid in a dumpster. The FBI sent a sample of these syringes as well as one of the syringes obtained by the nurse informant to Ohio for testing. The lab results came back on October 27, 2005, and it was determined no flu vaccine of any kind was present. The solution was determined not to be saline, and further testing is being conducted to determine what the fluid is.
18. During the interview, Defendant Eddie Abu El Hawa provided the names of several individuals who had received flu shots from his companies. Two of these individuals were identified as Medicaid recipients. These individuals live in the same senior independent living facility, Happy Harbor Senior Housing, in La Porte, Texas. On Wednesday, October 26, 2005, Sgt. Kelly spoke with Carol Schaefer, the manager of Happy Harbor. Sgt. Kelly learned that during a health fair for general health issues such as blood pressure and cholesterol conducted in the Spring of 2005, Happy Harbor management had asked Linda Smith to conduct a flu shot clinic in the Fall of 2005 to which Linda Smith agreed. On Friday, October 21, 2005, flu shots were administered to approximately sixteen residents of Happy Harbor and four other individuals. Defendant Eddie Abu El Hawa intended to bill Medicare and Medicaid for the flu shots.
19. On Thursday, October 27, 2005, the FBI provided MFCU with additional locations where Defendant Eddie Abu El Hawa had conducted health fairs/flu shot clinics. Sgt. Kelly and another MFCU investigator visited several of these facilities. One such facility, The Villas in the Pines, which is located at 15001 Crosswinds Drive in Houston, Texas, had a flu shot clinic on Tuesday, October 18, 2005. The flu shots were administered until the vaccine ran out. Defendant Eddie Abu El Hawa intended to bill Medicare and Medicaid for the flu shots. A follow-up flu shot clinic was scheduled for Tuesday, October 25, 2005, to continue the flu shots, but it was cancelled the day before and a health fair on general health issues was conducted instead. A director at The Villas in the Pines provided Sgt. Kelly with Smith’s business card which lists her employer as America Home Health Services and her title as Community Liaison. This same director also provided Defendant Denise Gonzales’s business card which lists the same employer, but lists her title as Executive Director.
20. At another facility, Lovett Manor, located at 2056 Antoine Drive in Houston, Texas, approximately seven residents received flu shots on Monday, October 17, 2005. These shots were actually scheduled to be given on Wednesday, October 19, 2005, but Linda Smith and others arrived on Monday instead and shots were administered. Defendant Eddie Abu El Hawa intended to bill Medicare and Medicaid for the flu shots. A follow-up flu shot clinic was scheduled for Wednesday, October 26, 2005, but no one showed up to administer the shots.
21. Currently, there is a flu shot clinic organized by Linda Smith scheduled to take place on Monday, October 31, 2005, at Primrose Casa Bella located at 5105 Airline Drive in Houston, Texas.
VIOLATIONS OF THE DTPA
22. Plaintiff incorporates and adopts by reference the allegations contained in each and every preceding paragraph of this petition.
23. Defendants in the course and conduct of trade and commerce, have directly and indirectly engaged in false, misleading, and deceptive acts and practices declared to be unlawful by the DTPA §17.46(a) and (b), by engaging in the following conduct:
A. Causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services, in violation of the DTPA, §17.46(b)(2);
B. Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have, or that a person has a sponsorship, approval, status, affiliation, or connection which he/she does not have, in violation of the DTPA, §17.46(b)(5);
C. Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another, in violation of the 8 DTPA, §17.46(b)(7);
D. Advertising goods or services with intent not to sell them as advertised, in violation of the DTPA, §17.46(b)(9); and
E. Failing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction which the consumer would not have entered had the information been disclosed, in violation of the DTPA, §17.46(b)(24).
INJURY TO CONSUMERS
24. By means of the foregoing unlawful acts and practices, Defendants have acquired money or other property from identifiable persons to whom such money or property should be restored.
25. Defendants’ assets are subject to the equitable remedy of disgorgement, which is the forced relinquishment of all benefits that would be unjust for Defendants to retain, including all ill-gotten gains and benefits or profits that result from Defendants putting fraudulently converted property to a profitable use. Plaintiff asks the Court to order Defendants to disgorge all monies fraudulently taken from individuals and businesses together with all of the proceeds, profits, income, interest, and accessions thereto. Plaintiff further asks that such disgorgement be for the benefit of victimized consumers and the State of Texas.
REPATRIATION OF ASSETS
26. After due notice and a hearing, Plaintiff asks the Court to order that all of Defendants’ assets situated outside the jurisdiction of this Court be deposited or repatriated into an appropriate financial institution within the jurisdiction of this Court.
REQUEST FOR FINDINGS OF ACTUAL FRAUD AND FALSE REPRESENTATION
27. Plaintiff asks the Court to find at the conclusion of this case that all of the Defendants have engaged in actual fraud and false representation in that Defendants have made repeated and materially false representations to the public concerning the distribution and administration of flu vaccines, which were known to be false when made. Such false representations were made with the intention that they be acted upon by the parties to whom the misrepresentations were made. Reliance upon these false representations has resulted in injury to hundreds if not thousands of consumers in Texas.
REQUEST TO CONDUCT DISCOVERY PRIOR TO TEMPORARY INJUNCTION HEARING
28. Plaintiff requests leave of this Court to conduct telephonic, oral, written, and other depositions of witnesses prior to any scheduled Temporary Injunction hearing and prior to Defendants’ answer date. There are a number of victims and other witnesses who may need to be deposed prior to any scheduled injunction hearing. Any depositions, telephonic or otherwise, would be conducted with reasonable, shortened notice to Defendants and their attorneys, if known.
TRIAL BY JURY
29. Plaintiff herein requests a jury trial and tenders the jury fee to the Harris County District Clerk’s office pursuant to TEX. R. CIV. P. 216 and TEX. GOVT. CODE ANN. § 51.604.
APPLICATION FOR EX PARTE TEMPORARY RESTRAINING ORDER,
TEMPORARY INJUNCTION AND PERMANENT INJUNCTION
30. Because Defendants have engaged in the unlawful acts and practices described above, Defendants have violated and will continue to violate the law as alleged in this petition. Unless immediately restrained by this honorable Court, Defendants will continue to violate the laws of the State of Texas and cause immediate and irreparable injury, loss, and damage to the State of Texas and to the general public. Therefore, Plaintiff requests an Ex Parte Temporary Restraining Order, Temporary Injunction, and Permanent Injunction as indicated below.
31. WHEREFORE, Plaintiff prays that Defendants be cited according to law to appear and answer herein; that before notice and hearing a TEMPORARY RESTRAINING ORDER be issued; that after due notice and hearing a TEMPORARY INJUNCTION be issued; and upon final hearing a PERMANENT INJUNCTION be issued, restraining and enjoining Defendants, Defendants’ successors, assigns, officers, agents, servants, employees, and attorneys and any other person in active concert or participation with Defendants from engaging in the following acts or practices:
A. Transferring, concealing, destroying, or removing from the jurisdiction of this Court any books, records, documents, invoices, or other written materials relating to the business of Defendants currently or hereafter in the Defendants’ possession, custody, or control except in response to further orders or subpoenas in this cause;
B. Transferring, spending, hypothecating, concealing, encumbering, withdrawing, removing or allowing the transfer, removal, or withdrawal from any financial institution or from the jurisdiction of this Court any money, stocks, bonds, assets, notes, equipment, funds, accounts receivable, policies of insurance, trust agreements, or other property, real, personal or mixed, wherever situated, belonging to or owned by, in the possession or custody of, standing in the name of, or claimed by Defendants without further order of this court;
C. Opening or causing to be opened any safe deposit boxes or storage facilities titled in the name of Defendants or any of Defendants’ assumed names, or subject to access or control by Defendants, without providing Plaintiff and the Court prior notice by motion seeking such access;
D. Planning or participating in any health fair where flu shots are to be given or planning or participating in any flu shot/vaccine clinics;
E. Advertising that a drug or a substance is flu vaccine when in fact it is not flu vaccine;
F. Buying or selling flu vaccine or any drug or substance purported to be flu vaccine; and
G. Administering flu shots to any persons.
32. In addition, Plaintiff respectfully prays that upon final hearing this Court will:
A. Adjudge against each Defendant civil penalties in favor of Plaintiff State of Texas in an amount up to $20,000 per violation as allowed by law pursuant to TEX. BUS. & COM. CODE §17.47(c)(1) and an additional amount not to exceed more than $250,000 for acts and practices calculated to acquire or deprive money or other property from a consumer who was sixty-five (65) years of age or older when the act or practice occurred;
B. Order Defendants to restore all money or other property taken from identifiable persons by means of unlawful acts or practices, or in the alternative, award judgment for damages in an amount within the jurisdictional limits of this Court to compensate for such losses;
C. Order the disgorgement of all sums taken from consumers by means of deceptive trade practices, together with all proceeds, interest, income, profits and accessions thereto;
D. Order Defendants’ assets be repatriated into the jurisdiction of this Court;
E. Order Defendants to pay Plaintiff State of Texas attorneys’ fees and costs of court pursuant to TEX. GOVT. CODE § 402.006(c);
F. Order Defendants to pay all prejudgment interest on all awards of restitution, damages, or civil penalties as provided by law;
G. Grant leave to Plaintiff State of Texas to conduct telephonic, oral, and other depositions prior to Defendants’ answer date and any Temporary Injunction hearing; and
H. Grant all other relief to which Plaintiff State of Texas may be justly entitled.
Attorney General of Texas
BARRY R. McBEE
First Assistant Attorney General
Deputy Attorney General for Litigation
PAUL CARMONA Chief, Consumer Protection Division
ROBERTA H. NORDSTROM
State Bar No. 24036801
JOHN OWENS State Bar No. 15379200
Assistant Attorneys General
Office of the Attorney General
Consumer Protection and Public Health Division
808 Travis, Suite 300
Houston, Texas 77002
(713) 223-5886 – Telephone
SPIN NO. 99999928
This page was posted onNovember 23, 2005.