throbber
Case 6:20-cv-01294-CEM-EJK Document 1 Filed 07/21/20 Page 1 of 11 PageID 1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF FLORIDA
`
`
`
`EDWIN J. PRADO GALARZA
`Plaintiff
`
`v.
`
`EXAMSOFT WORLDWIDE, INC.,
`INSURER A
`Defendants
`
`
`
`Case No.
`
`
`
`
`COMPLAINT
`
`
`TO THE HONORABLE COURT:
`
`
`COMES NOW, the plaintiff Edwin J. Prado Galarza (hereinafter “Mr. Prado” or
`
`“the plaintiff”), represented by the undersigned counsel and respectfully states, alleges,
`
`and requests as follows:
`
`JURISDICTION AND VENUE
`
`1. The Honorable Court has diversity jurisdiction over this action pursuant to 28
`
`U.S.C. § 1332(a) as the matter in controversy exceeds the sum or value of
`
`$75,000, exclusive of interests and costs, and is wholly between citizens of
`
`different states.
`
`2. The Honorable Court has personal jurisdiction over the known defendant
`
`because it is a Delaware corporation authorized to conduct business in the State
`
`of Florida and has conducted business within the State of Florida.
`
`3. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because the events or
`
`omissions giving rise to the plaintiff’s claims occurred within this judicial district.
`
`DEMAND FOR JURY TRIAL
`
`4. The plaintiff invokes his Seventh Amendment right to a jury trial on all issues
`
`triable by a jury as the value in controversy exceeds $20. See U.S. Const.
`
`amend. VII (“In suits at common law, where the value in controversy shall exceed
`
`twenty dollars, the right of trial by jury shall be preserved.”); see also Fed. R. Civ.
`
`P. 38.
`
`THE PARTIES
`
`5. The plaintiff, Edwin J. Prado Galarza, is a resident and citizen of Puerto Rico.
`
`His postal address is as follows: 403 Calle Del Parque, Suite 8, San Juan, Puerto
`
`Rico 00912.
`
`

`

`Case 6:20-cv-01294-CEM-EJK Document 1 Filed 07/21/20 Page 2 of 11 PageID 2
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`6. The defendant, ExamSoft Worldwide, Inc. (hereinafter “ExamSoft”), is a
`
`corporation existing under the laws of the State of Delaware with its principal
`
`place of business located at 5001 LBJ Freeway, Suite 700, Dallas, Texas 75244.
`
`7. ExamSoft regularly conducts business throughout this district, the State of
`
`Florida, and the United States generally.
`
`8. The unknown defendant, Insurer A, is an insurance company with the capacity to
`
`sue and be sued that issued a policy with insurance coverage for ExamSoft and
`
`whose name and principal place of business is currently unknown to the plaintiff.
`
`FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEF
`
`9. Mr. Prado is a well-known attorney in Puerto Rico and has practiced law for
`
`twenty-eight (28) years primarily in New York and Puerto Rico, and more recently
`
`in the State of Florida. He is the managing partner of Prado, Núñez and
`
`Associates, C.S.P. and has worked as an Associate Professor at the University
`
`of Puerto Rico for twenty-eight (28) years. He is currently the President of the
`
`Puerto Rico Bar Association for the State of Florida. Mr. Prado has represented
`
`high-profile clients in the entertainment industry and his name and reputation
`
`have been highlighted by the media and legal peers.
`
`10. Mr. Prado paid ExamSoft money to download and use their software to take the
`
`essay portion of the Florida Bar’s admissions test administered in July of 2017 in
`
`Tampa, Florida.
`
`11. Mr. Prado completed the essay portion of the examination within the 3-hour time
`
`frame permitted by the Florida Board of Bar Examiners (hereinafter “FBE”).
`
`12. On August 11, 2017, Mr. Prado received a letter from the FBE notifying him that
`
`ExamSoft had notified it that the recorded time on Mr. Prado’s exam platform
`
`exceeded the time limit by 1 minute and 4 seconds.
`
`13. The FBE requested an explanation for the alleged transgression and notified Mr.
`
`Prado that his grades could be impounded pending the result of the investigation
`
`pursuant to Rule 4-62.1 of the Rules of the Supreme Court Relating to
`
`Admissions to The Bar.
`
`- 2 -
`
`

`

`Case 6:20-cv-01294-CEM-EJK Document 1 Filed 07/21/20 Page 3 of 11 PageID 3
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`14. Mr. Prado provided a timely response to the accusation and categorically denied
`
`the suggestion that he had exceeded the time allotted on the essay portion of the
`
`examination.
`
`15. On September 28, 2017, the FBE provided Mr. Prado with a copy of the
`
`ExamSoft records that were referenced in its August 11, 2017, letter and further
`
`notified Mr. Prado that the ExamSoft activity log showed that he added 42
`
`characters on the essay portion of the examination after the time to complete the
`
`examination had elapsed. The FBE letter further directed Mr. Prado to appear at
`
`the FBE’s October 2017 hearing.
`
`16. The allegations raised by the FBE based on the ExamSoft records caused Mr.
`
`Prado grave consternation despite his categorical denial of any impropriety or
`
`unethical conduct on his part.
`
`17. The mere allegation of dishonesty in an examination of this nature entails serious
`
`predicaments for the applicant that could derail attempts to obtain licenses to
`
`practice law in Florida and other states and possibly lead to disciplinary action in
`
`those jurisdictions where the applicant is already licensed.
`
`18. The essence of the allegations suggested by the ExamSoft activity records was
`
`that Mr. Prado, who has enjoyed an unblemished legal career for the past 28
`
`years, cheated on the Florida Bar Examination.
`
`19. The frivolous allegations leveled against Mr. Prado as a result of the ExamSoft
`
`records put his professional certifications, professional career, and reputation in
`
`the legal community and with his clients in jeopardy.
`
`20. As previously alluded to, Mr. Prado has been an associate professor for the
`
`University of Puerto Rico for 28 years and will be retiring soon. Yet, the
`
`accusation by ExamSoft equates to academic dishonesty that would have
`
`resulted in his firing.
`
`21. As a result of the flawed report issued by ExamSoft, Mr. Prado was precluded
`
`from having access to his examination results and was required to undergo an
`
`investigation that would focus on the allegation that he cheated on the
`
`examination by exceeding the applicable time constraints for the essay portion.
`
`- 3 -
`
`

`

`Case 6:20-cv-01294-CEM-EJK Document 1 Filed 07/21/20 Page 4 of 11 PageID 4
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`22. In mounting his defense against these unfounded allegations, Mr. Prado spent
`
`more than $25,000 in legal and expert-witness fees, among other expenses, to
`
`prepare and try his case in front of the Ethics Committee of the Florida Bar.
`
`23. Mr. Prado retained Eric Chuang, the Managing Director of BDO in charge of
`
`Cyber Incident Response and a former FBI agent with expertise in Computer
`
`Forensics (hereinafter “the expert”) who prepared an expert report. Exhibit 1.
`
`24. In order to prepare the report, the expert examined the laptop computer Mr.
`
`Prado used for the exam. See Id. at p. 2. The laptop computer ran on a
`
`Windows operating system.
`
`25. The expert found that the ExamSoft software caused two crashes of one of the
`
`laptop’s native software programs “that manages multiple Windows processes
`
`and services including network connections and Windows Time Service. Once
`
`[said program] crashes, Windows become unstable. That instability can cause
`
`other components to fail in unpredictable manners. Once [said program]
`
`crashes, information from the System time and Clock cannot be relied upon.” Id.
`
`26. “ExamSoft has a ‘Time Limit’ enforcement function built in, but that function was
`
`set to be OFF by default /test administrator. That function should be set to ‘ON’
`
`for timed tests such as Bar Exam. This setting is ONLY configurable by the Test
`
`Administrator, not by the user.” Id. (emphasis in original).
`
`27. As it turns out, the computer went into “suspend mode” on two separate
`
`occasions at the exact same times that the program crashed. Id. at pp. 2-3. The
`
`ExamSoft software “was the most likely cause as it was active right before the
`
`. . . crash.” Id.
`
`28. “Because the Suspend/Sleep function is heavily dependent on the system
`
`time/clock, the accuracy of the system time/clock is no longer valid as evidenced
`
`by the random triggering of system Suspend/Sleep.” Id. at p. 3.
`
`29. “Given what the logs indicate, it is highly probable that the some combination of
`
`ExamSoft algorithms and/or use of system resources (time API, system interrupt,
`
`etc.) are flawed or faulty, or misconfigured.” Id.
`
`30. As it was ExamSoft that created the system instability and caused Mr. Prado’s
`
`computer to become unstable, it was impossible to guarantee the correct amount
`
`- 4 -
`
`

`

`Case 6:20-cv-01294-CEM-EJK Document 1 Filed 07/21/20 Page 5 of 11 PageID 5
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`of time spent by Mr. Prado to complete the exam by relying on the software. Id.
`
`at p. 6.
`
`31. The expert report attributed the conclusions regarding the alleged time
`
`transgression to a system suspension that occurred in the ExamSoft system.
`
`32. There was no other evidence in existence or relied upon by ExamSoft, the FBE,
`
`or the Ethics Committee of the Florida Bar that would tend to suggest that Mr.
`
`Prado may have cheated on the exam.
`
`33. Despite there being thousands of other test takers and dozens of proctors
`
`present during this examination, there is not a single person who witnessed Mr.
`
`Prado cheat on the exam.
`
`34. Moreover, it would be illogical for Mr. Prado to jeopardize his already prominent
`
`career and reputation over an extra minute on a 2-day exam.
`
`35. Although Mr. Prado prevailed before the Ethics Committee of the Florida Bar, this
`
`unfortunate process delayed his admission to the practice of law in the State of
`
`Florida for more than 9 months, caused him grave emotional distress and
`
`suffering, required the investment of substantial financial resources, and resulted
`
`in him missing out on many potentially lucrative opportunities in Florida.
`
`FIRST CLAIM FOR RELIEF
`Negligence
`36. The allegations in all preceding paragraphs are realleged as if fully incorporated
`
`herein.
`
`37. By accepting payment from Mr. Prado, the defendants assumed a duty to deliver
`
`to the Florida Board of Bar Examiners the answers provided by him during the
`
`examination and to correctly record the time expended by Mr. Prado in
`
`completing the essay portion of the examination.
`
`38. The defendants owed a duty to Mr. Prado to use and exercise reasonable and
`
`due care in the creation and maintenance of the infrastructure for ExamSoft’s
`
`software, including the website, servers, and other components necessary to
`
`obtain the correct time spent by Mr. Prado during the exam. They also had the
`
`responsibility to examine the results of their activity software to ensure their
`
`accuracy prior to leveling claims that Mr. Prado had exceeded the allotted time
`
`for the completion of the essay portion.
`
`- 5 -
`
`

`

`Case 6:20-cv-01294-CEM-EJK Document 1 Filed 07/21/20 Page 6 of 11 PageID 6
`
`39. The defendants breached their duties by failing to adequately design, maintain,
`
`monitor, update, or improve its system and, as a result, Mr. Prado was falsely
`
`accused of cheating on the essay portion of the examination by allegedly
`
`exceeding the time limit for the examination by 1 minute and 4 seconds.
`
`40. The defendants knew or, with the reasonable exercise of due care, should have
`
`known of the inherent risks that come with running the ExamSoft software and
`
`the internal errors that the system could generate, which would undermine the
`
`accuracy of its results.
`
`41. The defendants’ carelessness and negligent conduct directly caused Mr. Prado
`
`to suffer emotional distress and pecuniary harm.
`
`42. Mr. Prado is entitled to a judgment for compensatory and punitive damages,
`
`costs, prejudgment interest, and any other relief the court deems equitable and
`
`just under the circumstances.
`
`43. Mr. Prado’s damages stem from the payment made to ExamSoft for the use of
`
`the software, the payment of the expert to investigate the cheating allegations,
`
`the payment of legal fees related to his defense before the Ethics Committee of
`
`the Florida Bar, the loss of earnings as a result of the 9-month delay to be
`
`admitted into the Florida Bar, emotional suffering, and the damages to Mr.
`
`Prado’s honor and reputation.
`
`SECOND CLAIM FOR RELIEF
`Product Liability
`44. The allegations in all preceding paragraphs are realleged as if fully incorporated
`
`herein.
`
`45. Mr. Prado used ExamSoft’s software in the manner that it was intended to be
`
`used or in a manner that the defendants could have reasonably expected a
`
`person to use the product.
`
`46. The defendants’ software was defectively designed, defectively manufactured, or
`
`did not contain adequate instructions or warnings to ensure its proper use. The
`
`defendants failed to create or maintain the proper infrastructure for ExamSoft’s
`
`software, including the website, servers, and other components necessary to
`
`obtain the correct time spent by Mr. Prado during the exam.
`
`- 6 -
`
`

`

`Case 6:20-cv-01294-CEM-EJK Document 1 Filed 07/21/20 Page 7 of 11 PageID 7
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`47. As a direct and proximate result of the defective software and the defendants’
`
`actions, Mr. Prado experienced emotional distress and pecuniary harm.
`
`48. Mr. Prado is entitled to a judgment for compensatory and punitive damages,
`
`costs, prejudgment interest, and any other relief the court deems equitable and
`
`just under the circumstances.
`
`49. Mr. Prado’s damages stem from the payment made to ExamSoft for the use of
`
`the software, the payment of the expert to investigate the cheating allegations,
`
`the payment of legal fees related to his defense before the Ethics Committee of
`
`the Florida Bar, the loss of earnings as a result of the 9-month delay to be
`
`admitted into the Florida Bar, emotional suffering, and the damages to Mr.
`
`Prado’s honor and reputation.
`
`THIRD CLAIM FOR RELIEF
`Breach of Contract
`50. The allegations in all preceding paragraphs are realleged as if fully incorporated
`
`herein.
`
`51. In order to download and use the defendants’ software, Mr. Prado entered into a
`
`valid and binding contract whereby he paid
`
`the defendants monetary
`
`consideration and the defendants had a duty to provide a reliable software
`
`system that would provide reliable time results for the examination.
`
`52. Mr. Prado fully performed his obligations under the contract by paying the fee
`
`required by ExamSoft to use its system and software. Additionally, Mr. Prado
`
`complied with all conditions precedent and followed all ExamSoft’s installation
`
`and use instructions.
`
`53. The defendants materially breached this contract by failing to provide a software
`
`that provided reliable time results for the examination. Additionally, the
`
`defendants failed to sufficiently examine the software results to eliminate the
`
`possibility of error before informing the FBE and Mr. Prado that he had exceeded
`
`the allotted time for the test.
`
`54. As a direct and proximate result of the defendants’ bad faith, misconduct, and
`
`breach of contract, Mr. Prado suffered substantial damages and emotional
`
`distress.
`
`- 7 -
`
`

`

`Case 6:20-cv-01294-CEM-EJK Document 1 Filed 07/21/20 Page 8 of 11 PageID 8
`
`55. Mr. Prado is entitled to a judgment for compensatory and punitive damages,
`
`costs, prejudgment interest, attorneys’ fees, and any other relief the court deems
`
`equitable and just under the circumstances.
`
`56. Mr. Prado’s damages stem from the payment made to ExamSoft for the use of
`
`the software, the payment of the expert to investigate the cheating allegations,
`
`the payment of legal fees related to his defense before the Ethics Committee of
`
`the Florida Bar, the loss of earnings as a result of the 9-month delay to be
`
`admitted into the Florida Bar, emotional suffering, and the damages to Mr.
`
`Prado’s honor and reputation.
`
`FOURTH CLAIM FOR RELIEF
`
`Unjust Enrichment
`
`57. The allegations in all preceding paragraphs are realleged as if fully incorporated
`
`herein.
`
`58. Mr. Prado affirmatively alleges that the defendants have been unjustly enriched
`
`by charging and collecting a fee for providing reliable software and support while
`
`failing to do so.
`
`59. If the legal claims addressed herein are found to be unavailable, then there is no
`
`adequate remedy at law.
`
`60. Mr. Prado conferred a benefit upon the defendants by way of payment for their
`
`services. The defendants knowingly profited from the sale or licensing of its
`
`software to Mr. Prado. The defendants received and retained money belonging
`
`to Mr. Prado because of its unlawful conduct described herein. The defendants
`
`appreciate or have knowledge of the benefit conferred upon them by Mr. Prado.
`
`61. Under principles of equity, the defendants should not be permitted to retain
`
`payment or profit from the unlawful conduct described herein.
`
`62. Mr. Prado has experienced emotional distress and pecuniary harm as a direct
`
`result of the defendants’ unlawful conduct.
`
`63. Mr. Prado is entitled to a judgment for compensatory and punitive damages,
`
`costs, prejudgment interest, and any other relief the court deems equitable and
`
`just under the circumstances.
`
`- 8 -
`
`

`

`Case 6:20-cv-01294-CEM-EJK Document 1 Filed 07/21/20 Page 9 of 11 PageID 9
`
`64. Mr. Prado’s damages stem from the payment made to ExamSoft for the use of
`
`the software, the payment of the expert to investigate the cheating allegations,
`
`the payment of legal fees related to his defense before the Ethics Committee of
`
`the Florida Bar, the loss of earnings as a result of the 9-month delay to be
`
`admitted into the Florida Bar, emotional suffering, and the damages to Mr.
`
`Prado’s honor and reputation.
`
`FIFTH CLAIM FOR RELIEF
`
`Florida Deceptive and Unfair Trade Practices Act
`
`65. The allegations in all preceding paragraphs are realleged as if fully incorporated
`
`herein.
`
`66. On its website and in connection with consumers downloading the software,
`
`ExamSoft falsely advertised its software as reliable and as a trusted platform for
`
`administering bar examinations.
`
`67. Mr. Prado’s experience demonstrates that the software is defective and will lead
`
`to distorted results that indicate that a test taker exceeded their allotted exam
`
`time. Further, the support, maintenance, and troubleshooting systems in place
`
`for the software are inadequate as they were unable to realize that the software
`
`incorrectly interpreted that Mr. Prado exceeded the allotted time on the exam.
`
`68. The defendants knew, or in the exercise of reasonable diligence, should have
`
`known, that these statements and actions were deceptive, unconscionable, or
`
`unfair.
`
`69. The defendants made these statements for the purpose of selling property and
`
`intended that boards of bar examiners and test takers alike would rely on these
`
`representations by using and purchasing their software.
`
`70. These statements and actions were likely to mislead an objective consumer
`
`acting reasonably considering the circumstances.
`
`71. Mr. Prado did in fact rely upon these statements, and such reliance was
`
`reasonable and
`
`justified, given ExamSoft’s self-professed reputation
`
`for
`
`reliability.
`
`72. As a result of his reliance on the defendants’ misrepresentations, Mr. Prado
`
`experienced emotional distress and pecuniary harm.
`
`- 9 -
`
`

`

`Case 6:20-cv-01294-CEM-EJK Document 1 Filed 07/21/20 Page 10 of 11 PageID 10
`
`73. Mr. Prado is entitled to a judgment for compensatory and punitive damages,
`
`costs, prejudgment interest, attorneys’ fees, and any other relief the court deems
`
`equitable and just under the circumstances.
`
`74. Mr. Prado’s damages stem from the payment made to ExamSoft for the use of
`
`the software, the payment of the expert to investigate the cheating allegations,
`
`the payment of legal fees related to his defense before the Ethics Committee of
`
`the Florida Bar, the loss of earnings as a result of the 9-month delay to be
`
`admitted into the Florida Bar, emotional suffering, and the damages to Mr.
`
`Prado’s honor and reputation.
`
`SIXTH CLAIM FOR RELIEF
`
`Misleading Advertising
`
`75. The allegations in all preceding paragraphs are realleged as if fully incorporated
`
`herein.
`
`76. On its website and in connection with consumers downloading the software,
`
`ExamSoft falsely advertised its software as reliable and as a trusted platform for
`
`administering bar examinations. These statements and actions were likely to
`
`mislead an objective consumer acting reasonably considering the circumstances.
`
`77. Mr. Prado’s experience demonstrates that the software is defective and will lead
`
`to distorted results that indicate that a test taker exceeded their allotted exam
`
`time. Further, the support, maintenance, and troubleshooting systems in place
`
`for the software are inadequate as they were unable to realize that the software
`
`incorrectly interpreted that Mr. Prado exceeded the allotted time on the exam.
`
`78. The defendants knew that these statements and actions were false, deceptive,
`
`unconscionable, or unfair. The defendants knew that the software had
`
`imperfections, bugs, or glitches that could interfere with the proper gathering of
`
`information.
`
`79. The defendants made these material misrepresentations intentionally for the
`
`purpose of inducing others to purchase the software and intended that boards of
`
`bar examiners and test takers alike would rely on these representations by using
`
`and purchasing their software.
`
`- 10 -
`
`

`

`Case 6:20-cv-01294-CEM-EJK Document 1 Filed 07/21/20 Page 11 of 11 PageID 11
`
`80. Mr. Prado did in fact rely upon these statements, and such reliance was
`
`reasonable and
`
`justified, given ExamSoft’s self-professed reputation
`
`for
`
`reliability.
`
`81. As a result of his reliance on the defendants’ misrepresentations, Mr. Prado
`
`experienced emotional distress and pecuniary harm.
`
`82. Mr. Prado is entitled to a judgment for compensatory and punitive damages,
`
`costs, prejudgment interest, attorneys’ fees, and any other relief the court deems
`
`equitable and just under the circumstances.
`
`83. Mr. Prado’s damages stem from the payment made to ExamSoft for the use of
`
`the software, the payment of the expert to investigate the cheating allegations,
`
`the payment of legal fees related to his defense before the Ethics Committee of
`
`the Florida Bar, the loss of earnings as a result of the 9-month delay to be
`
`admitted into the Florida Bar, emotional suffering, and the damages to Mr.
`
`Prado’s honor and reputation.
`
`PRAYER FOR RELIEF
`
`
`
`WHEREFORE, in view of foregoing, the plaintiff respectfully requests and prays
`
`for judgement in his favor against the defendants as follows:
`
`A. Ordering the defendants to pay compensatory and punitive damages;
`
`B. Ordering the defendants to pay costs, prejudgment interest, and attorneys’ fees;
`
`and
`
`C. Ordering any further relief that the court deems equitable and just under the
`
`circumstances.
`
`RESPECTFULLY SUBMITTED in Orlando, Florida, on this 21th day of July,
`
`2020.
`
`
`
`s/ Manuel Franco, Esq.
`Attorney at Law
`513 W. Colonial Dr. Unit 5
`Orlando, FL 32804
`Florida Bar No. 126443
`(407) 420-7926
`(787) 977-1411
`Manuel.Franco.Law@gmail.com
`
`- 11 -
`
`

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