|MICHAEL R. STILES
United States Attorney
Assistant United States Attorney
IN THE UNITED STATES DISTRICT COURT
UNITED STATES OF AMERICA, Plaintiff
CDnow, Inc., and CDnow Online, Inc., Defendants.
Civil Action No. _______________
WHEREAS plaintiff, the United States of America, has commenced this action by filing the Complaint herein; defendants have 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 defendants admitting liability for any of the matters alleged in the Complaint;
THEREFORE, upon stipulation of plaintiff and defendants, 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 defendants under Sections 5(a)(1), 5(m)(1)(A), 13(b) and 16(a) of the Federal Trade Commission Act, 15 U.S.C. §§ 45(a)(1), 45(m)(1)(A), 53(b) and 56(a).
3. For the purposes of this Consent Decree, the term "Mail Order Rule" means the Federal Trade Commission's Trade Regulation Rule Concerning Mail or Telephone Order Merchandise, 16 C.F.R. Part 435, or as the Rule may hereafter be amended.
4. Defendants CDnow, Inc. and CDnow Online, Inc., their successors and assigns, shall pay to plaintiff a civil penalty, pursuant to section 5(m)(1)(A) of the Federal Trade Commission Act, 15 U.S.C. § 45(m)(1)(A), in the amount of three hundred thousand dollars ($300,000). Based on defendants' sworn representations in the Form 10-K filed with the United States Securities and Exchange Commission for the fiscal year ending December 31, 1999, and the Form 10-Q filed with the United States Securities and Exchange Commission for the quarter ending March 31, 2000, hereinafter designated as "Financial Disclosure Statements," payment of the foregoing civil penalty is waived except for one hundred thousand dollars ($100,000), contingent upon the accuracy and completeness of the Financial Disclosure Statements. Defendants are jointly and severally liable for payment of the civil penalty.
5. Defendants shall make the one hundred thousand dollar ($100,000) payment required by Paragraph 4 in two equal installments. Defendant shall, within five (5) days of the date of entry of this Consent Decree, pay the sum of fifty thousand dollars ($50,000) by electronic fund transfer in accordance with the instructions provided by the Office of Consumer Litigation, Civil Division, U.S. Department of Justice, Washington, D.C. 20530, for appropriate disposition. Defendants shall make a second payment of fifty thousand dollars ($50,000), in the same manner, no later than December 31, 2000.
6. In the event of any default in payment, which default continues for ten (10)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.
7. Defendants, their successors and assigns, and their officers, agents, servants, employees and attorneys, and all other 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 violating, directly or through any corporation, subsidiary, division or other device, any provision of the Mail Order Rule, in any way, including but not limited to:
8. In the event the Mail Order Rule is hereafter amended or modified, defendants' compliance with that Rule as so amended or modified shall not be deemed a violation of this injunction. A copy of the Mail Order Rule is attached hereto as "Appendix A" and incorporated herein as if fully set forth verbatim.
9. Defendants shall, within thirty (30) days of the entry of this Consent Decree, provide a copy of this Consent Decree and the Business Guide to the Federal Trade Commission's Mail or Telephone Order Merchandise Rule (Jan. 1995) ("Business Guide") to each of their supervisory or managerial agents, servants, employees and attorneys who are engaged in defendants' mail order catalog and Internet business, secure from each such person a signed statement acknowledging receipt of a copy of this Consent Decree and Business Guide, and shall, within ten (10) days of complying with this paragraph, file an affidavit with the Associate Director, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Ave., NW, Washington, D.C. 20580, 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.
10. For a period of five (5) years from the date of entry of this Consent Decree, defendants, their successors and assigns, shall maintain and make available to the Federal Trade Commission, within seven (7) days of the date of receipt of a written request, business records demonstrating compliance with the terms and provisions of this Consent Decree.
11. For a period of twenty (20) years from the date of entry of this Consent Decree, defendants, their successors and assigns, shall notify the Associate Director, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Ave., NW, Washington, D.C. 20580, at least thirty (30) days prior to any change in defendants' business, including, but not limited to, merger, incorporation, dissolution, assignment, sale resulting in the emergence of a successor corporation, the creation or dissolution of a subsidiary or parent, or any other change in corporate status that may affect defendants' obligations under this Consent Decree.
12. One hundred twenty (120) days after entry of this Consent Decree, defendants shall provide a written report to the Federal Trade Commission, sworn to under penalty of perjury, setting forth in detail the manner and form in which the defendants have complied and are complying with this Consent Decree. This report shall include but not be limited to:
Defendants shall mail this written notification to: the Associate Director for Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Ave., NW, Washington, D.C. 20580.
13. Defendants are hereby required, in accordance with 31 U.S.C. § 7701, to furnish to the Federal Trade Commission their taxpayer identifying number (social security number or employer identification number), which shall be used for purposes of collecting and reporting on any delinquent amount arising out of their relationship with the government.
14. 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 defendants, pursuant to all the terms and conditions recited above.
Dated this ___ day of _____, 20__.
UNITED STATES DISTRICT JUDGE
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. Defendants waive any rights that may arise under the Equal Access to Justice Act, 28 U.S.C. § 2412, concerning the investigation and prosecution of this action.
FOR THE UNITED STATES OF AMERICA:
DAVID W. OGDEN
MICHAEL R. STILES
Assistant United States Attorney
FOR THE FEDERAL TRADE COMMISSION:
PHYLLIS HURWITZ MARCUS
FOR THE DEFENDANTS:
CDnow, Inc.; CDnow Online, Inc.
STEPHEN PAUL MAHINKA