United States Attorney
UNITED STATES OF AMERICA, Plaintiff,
WESTPOINT STEVENS INC., a corporation, Defendant.
CIVIL NO. 97-4085 LGB (RNBx)
WHEREAS: Plaintiff, the United States of America, has commenced this action by filing the Complaint herein; defendant has waived service of the Summons and Complaint; the parties have been represented by the attorneys whose names appear hereafter; and the parties have agreed to settlement of this action upon the following terms and conditions, without adjudication of any issue of fact or law and without defendant admitting liability for any of the matters alleged in the Complaint;
THEREFORE, on the joint motion of plaintiff and defendant, it is hereby ORDERED, ADJUDGED and DECREED as follows:
1. This Court has jurisdiction of the subject matter and of the parties.
2. The Complaint states a claim upon which relief may be granted against the defendant under Sections 5(a)(1), 5(m)(1)(B), 9, 13(b), and 16(a) of the Federal Trade Commission Act,
15 U.S.C. 45(a)(1), 45(m)(1)(B), 49, 53(b), and 56(a) and the Textile Fiber Products Identification Act ("Textile Act"), 15 U.S.C. 70-70k.
3. Defendant WestPoint Stevens Inc., its successors and assigns, shall pay to plaintiff a civil penalty, pursuant to Section 5(m)(1)(B) of the Federal Trade Commission Act, 15 U.S.C. 45(m)(1)(B), in the amount of $360,000.
4. Defendant shall make the payment required by Paragraph 3 within five (5) days of the date of entry of this Consent Decree by certified or cashier's check made payable to the Treasurer of the United States and delivered to: The Office of Consumer Litigation, Civil Division, U.S. Department of Justice, Washington, D.C. 20530 for appropriate disposition.
5. In the event of any default in payment, which default continues for ten days beyond the due date of payment, the entire unpaid penalty, together with interest, as computed pursuant to 28 U.S.C. 1961 from the date of default to the date of payment, shall immediately become due and payable.
6. Defendant, its successors and assigns, and its officers, agents, servants, employees and attorneys, and all persons in active concert or participation with any one or more of them who receive actual notice of this Consent Decree by personal service or otherwise, are hereby enjoined from ever directly or through any corporation, subsidiary, division or other device:
PERSONS AFFECTED; CONTINUING JURISDICTION
7. Defendant, its successor and assigns, shall, within thirty (30) days of the entry of this Consent Decree, provide a copy of this Consent Decree to each director and officer, and to each employee, agent, and representative with any sales, marketing, advertising, financial or policy responsibility for the matters covered by this Consent Decree and shall secure from each such person a signed statement acknowledging receipt of a copy of this Consent Decree, and shall, within ten (10) days of complying with this paragraph, file an affidavit with the Court and serve the Federal Trade Commission, by mailing a copy thereof, to the Regional Director, Los Angeles Regional Office of the Federal Trade Commission, 11000 Wilshire Blvd., Los Angeles, California 90024, setting forth the fact and manner of their compliance, including the name and title of each person to whom a copy of the Consent Decree has been provided.
8. For a period of five (5) years from the date of entry of this Consent Decree, defendant, its successors and assigns, shall maintain and make available to the Federal Trade Commission, within seven (7) days of receipt of a written request, business records demonstrating compliance with the terms and provisions of this Consent Decree.
9. Defendant, its successors and assigns, shall notify the Regional Director, Los Angeles Regional Office of the Federal Trade Commission, of (1) any proposed action (including, but not limited to, a dissolution, assignment, sale, or merger) that would result in the emergence of a successor that engages in any acts or practices subject to this Consent Decree or that would result in the emergence of an assign (as, for example, the creation of a joint venture or the conferral of an intellectual property license) that engages in any acts or practices subject to this Consent Decree, (2) any proposed creation or dissolution of a subsidiary or an affiliate that engages in any acts or practices subject to this Consent Decree, (3) any proposed filing of a bankruptcy petition by the defendant or by any subsidiary or affiliate that engages in any acts or practices subject to this Consent Decree, (4) any proposed change in corporate name or address, by the defendant or by a subsidiary or affiliate that engages in any acts or practices subject to this Consent Decree, and (5) any proposed change in corporate structure that may affect compliance obligations arising out of the Consent Decree, at least thirty days before such proposed action is to take place. Provided, however, that, where defendant learns about a proposed action (other than the emergence of a successor or assign as described above), less than thirty days beforehand, defendant must notify the Regional Director of the Los Angeles Regional Office as soon as is practicable under the circumstances, but, in any case, no later than ten days after the action occurs. Provided, further, anything to the contrary herein notwithstanding, no notice shall be required under this paragraph with respect to the sale or assignment of inventory in the ordinary course of business.
10. This action, and the relief awarded herein, is in addition to and not in lieu of other remedies as may be provided by law, including both civil and criminal remedies. This settlement, however, is in full satisfaction of all claims asserted by the Federal Trade Commission in the Complaint filed in this action, and is contingent on the filing of the Complaint which is attached as Exhibit A.
11. This Court shall retain jurisdiction of this matter for the purposes of enabling any of the parties to this Consent Decree to apply to the Court at any time for such further orders or directives as may be necessary or appropriate for the interpretation or modification of this Consent Decree, for the enforcement of compliance therewith, or for the punishment of violations thereof.
JUDGMENT IS THEREFORE ENTERED in favor of plaintiff and against defendant, pursuant to all the terms and conditions recited above.
Dated this _______ day of ____________, 19___.
The parties, by their respective counsel, hereby consent to the terms and conditions of the Consent Decree as set forth above and consent to the entry thereof. Defendant waives any rights that may arise under the Equal Access to Justice Act, 28 U.S.C. 2412.
WESTPOINT STEVENS INC.
I, M. Clayton Humphries, Jr., do hereby certify that the following is a complete, true and correct copy of certain resolutions of the Board of Directors of WestPoint Stevens Inc., a corporation duly organized and existing under the laws of the State of Delaware, which resolutions were duly adopted at a duly called meeting of the said Board held on February 13, 1997, a quorum being present, and is set forth in the minutes of said meeting; and that the said resolutions have not been rescinded or modified:
RESOLVED, That M. Clayton Humphries, Jr., and Jones, Day Reavis and Pogue are unauthorized to enter into the Consent Decree between WestPoint Stevens Inc. and the Federal Trade Commission in the form attached hereto: and
FURTHER RESOLVED, That the officers of the Company be, and they are each hereby, authorized and empowered to execute and deliver such other documents and to do such other acts as they deem appropriate and necessary to effectuate the intent of the preceding resolution.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal of said Corporation, this 13th day of February 1997.
REASONS FOR SETTLEMENT
This statement accompanies the Consent Decree executed by defendant WestPoint Stevens Inc. in settlement of an action brought to recover penalties and other equitable relief from defendant for engaging in acts or practices in violation of the Textile Fiber Products Identification Act, 15 U.S.C. 70.
Pursuant to Section 5(m)(3) of the Federal Trade Commission Act, as amended (15 U.S.C. 45(m)(3)), the Commission hereby sets forth its reasons for settlement by entry of a Consent Decree and injunction:
For the foregoing reasons, the Commission believes that the settlement by entry of the attached Consent Decree with WestPoint Stevens Inc. is justified and well within the public interest.