UNITED STATES DISTRICT COURT
FEDERAL TRADE COMMISSION,
THE DEAN THOMAS CORPORATION, INC., a corporation, and THE GAME CLUB, INC., a corporation, and PROFESSIONAL PUBLISHERS, INC., a corporation, and THOMAS PUBLISHING COMPANY, INC., a corporation, and DEAN R. THOMAS, and RANDY B. LONIS, and RAYMOND CELIE, individually and as officers of said corporations,
JUDGE WILLIAM C. LEE
ROGER B. COSBEY
CIVIL NO. 1:97CV 0129
STIPULATED FINAL JUDGMENT
AS TO DEFENDANT RANDY B. LONIS
Plaintiff, the Federal Trade Commission (FTC), filed its complaint pursuant to section 13(b) of the Federal Trade Commission Act (FTC Act), 15 U.S.C. §§ 53(b), charging defendants with violations of section 5(a) of the FTC Act, 15 U.S.C. § 45(a). On April 8, 1997, this Court granted the FTC's motion for a temporary restraining order with asset freeze, appointment of a temporary receiver and other equitable relief, and ordered defendants to show cause why a preliminary injunction should not issue against them.
The parties subsequently agreed to entry of a stipulated preliminary injunction, which this Court granted on April 23, 1997.
NOW, plaintiff FTC, by and through its counsel, and defendant Randy B. Lonis, appearing on behalf of himself, have agreed to the entry of this Stipulated Final Judgment and Order (Order) by this Court, to resolve all matters of dispute between plaintiff FTC and defendant Randy B. Lonis (defendant Lonis) in this action without trial or adjudication of any issue of law or fact. The said parties having requested the Court to enter this Order, it is therefore ORDERED, ADJUDGED AND DECREED as follows:
For purposes of this Order, the following definitions shall apply:
IT IS THEREFORE ORDERED, in connection with the offering for sale, sale, distribution, marketing or sponsorship of any advertisement, publication, program or product, that defendant is hereby permanently restrained and enjoined from:
A. making any express or implied representation of material fact that is false or misleading, including, but not limited to, any misrepresentation:
B. using any alias, pen name or pseudonym, or otherwise misrepresenting his true identity.
IT IS FURTHER ORDERED that defendant is permanently restrained and enjoined from selling, renting, leasing, transferring or otherwise disclosing the name, address, telephone number, credit card number, bank account number or other identifying information of any person who paid money to any defendant in this matter, at any time, in connection with the offering for sale, sale, distribution, marketing, or sponsorship of any advertisement, publication, program or product. Provided, however, that defendant may disclose such identifying information to a law enforcement agency or as required by any law, regulation or court order.
The FTC's agreement to this Judgment, which does not provide for defendant contributing to consumer redress, is expressly premised upon the truthfulness, accuracy and completeness of the financial statement filed by the defendant with the Court in this matter and submitted to the FTC, and on the deposition testimony of defendant regarding his finances given on May 29, 1997, at Cleveland, Ohio. If, upon motion by the Commission, the Court finds that defendant failed to disclose any material asset, or materially misrepresented the value of any asset, or made any other material misrepresentation in or omission from the Financial Statement or deposition testimony, the judgment herein shall be reopened for the purpose of determining an appropriate amount for the defendant to pay as redress to consumers.
Provided, however, that in all other respects, this Order shall remain in full force and effect unless otherwise ordered by this Court; provided further that, for purposes of this section, and any subsequent proceedings to enforce payment, including but not limited to a nondischargeability complaint filed in a bankruptcy proceeding, defendant waives any right to contest any of the allegations of the Commissions complaint; and provided further that a proceeding instituted under this section is in addition to, and not in lieu of, any other civil or criminal remedies as may be provided by law, including any other proceedings the FTC may initiate to enforce this Order. No portion of any forfeiture shall be deemed a payment of any fine, penalty or punitive assessment.
IT IS FURTHER ORDERED that the freeze of defendant Randy B. Loniss assets, as ordered in paragraph III of the Temporary Restraining Order first entered in this matter on April 9, 1997, and continued by stipulation of the parties, to the extent not previously released by any separate Order of this Court, shall be lifted upon entry of this Order.
IT IS FURTHER ORDERED that defendant is hereby restrained and enjoined from engaging or participating in any capacity whatsoever, whether directly or in concert with others, or through any business entity or device, in the offering for sale, sale, distribution, marketing, or sponsorship of any advertisement in any publication or program, without first obtaining a performance bond. The principal sum of said bond shall be in the amount of Five Hundred Thousand Dollars ($500,000.00).
A. The bond shall be deemed continuous and remain in full force and effect as long as defendant continues to engage or participate in any capacity in the offering for sale, sale, distribution, marketing, or sponsorship of any advertisement in any publication, and for three (3) years after defendant ceases to engage or participate in the offering for sale, sale, distribution marketing, or sponsorship of any advertisement in any publication or program. The bond shall cite this Order as the subject matter of the bond, and shall provide surety thereunder against financial loss resulting from whole or partial failure of performance due, in whole or in part, to any violation of section 5 of the FTC Act or any provision of this Order.
B. Said bond shall be an insurance agreement providing surety for financial loss issued by a surety company that is admitted to conduct a surety business in each of the states in which defendant is doing business and that holds a Federal Certificate of Authority as Acceptable Surety on Federal Bond and Reinsuring. Each such bond shall be in favor of both (1) the Commission for the benefit of any consumer injured as a result of the failure of defendant to comply with section 5 of the FTC Act or the provisions of this Order, and (2) any consumer so injured.
C. The bond required by this Paragraph is in addition to, and not in lieu of, any other bond required by law. Defendant may satisfy the bond required by this paragraph and any other bond required by law in a single performance bond so long as all bond requirements of this Order and any other bond requirement are fully complied with.
D. If defendant obtains such bond, he shall provide the executed original of the bond or bonds required by this Paragraph to the Commissions Cleveland Regional Office, 1111 Superior Avenue, Suite 200, Cleveland, Ohio 44114, at least ten (10) days before engaging or participating in the offering for sale, sale, distribution, marketing, or sponsorship of any advertisement in any publication or program.
E. The Commission may execute against such performance bond if it demonstrates to this Court, by a preponderance of the evidence, that after the effective date of this Order, defendant, while engaging or participating in the offering for sale, sale, distribution, marketing, or sponsorship of any advertisement in any publication or program, made any false or misleading representation of material fact, directly or by implication, prohibited by section 5 of the FTC Act or the provisions of this Order.
F. Proceedings instituted under this Paragraph with respect to any performance bond are in addition to, and not in lieu of, any other civil or criminal remedies as may be provided by law, including any other proceedings the Commission may initiate to enforce this Order.
G. The performance bond required by this Paragraph shall provide that the surety company, within thirty (30) days following receipt of notice that a final judgment against defendant for consumer redress or disgorgement in an action brought under this Order or under the provisions of the Federal Trade Commission Act has been entered finding that defendant has violated the terms of this Order or the Federal Trade Commission Act and determining the amount of consumer redress or disgorgement to be paid, shall pay to the Commission so much of the performance bond as does not exceed the amount of consumer redress or disgorgement ordered, and which remains unsatisfied at the time notice is provided to the surety company; provided, however, that, if defendant has agreed to the entry of an order, a specific finding that defendant violated the terms of this Order or the provisions of the Federal Trade Commission Act shall not be necessary. A copy of the notice provided for herein shall be mailed to defendant at his last known address.
IT IS FURTHER ORDERED that, for a period of three (3) years, commencing with the date of entry of this Judgment, defendant shall notify in writing the Cleveland Regional Office of the Federal Trade Commission, Regional Director, 1111 Superior Avenue, Suite 200, Cleveland Ohio 44114, of:
A. any change in defendants employment status, within ten (10) days of such change. Such notice shall include the name and address of each business that he is affiliated with or employed by, a statement of the nature of the business, and a statement of defendants duties and responsibilities in connection with the business; and
B. any proposed change in the structure of any business entity owned or controlled by defendant, such as creation, incorporation, dissolution, assignment, sale, creation or dissolution of subsidiaries, or any other changes that may affect compliance obligations arising out of this Judgment, within thirty (30) days prior to the effective date of any proposed change.
IT IS FURTHER ORDERED that, for a period of three (3) years, commencing with the date of entry of this Judgment, for purposes of determining or securing compliance with this Judgment, in connection with any other business owned or controlled in whole or in part by defendant, defendant shall, upon written notice:
A. permit representatives of the FTC, within five (5) business days of receipt of such request, to interview the officers, directors or employees of any such business, subject to the reasonable convenience of defendant and the person to be interviewed and without restraint or interference from defendant, at a location reasonably convenient to the person to be interviewed, defendant, and the FTC. Such officers, directors or employees may have counsel present;
B. produce documents requested by the FTC within five (5) business days of receipt of such request;
C. permit representatives of the FTC to depose any officers, directors or employees of any such business within ten (10) business days of receipt of such request; and
D. permit representatives of the FTC, within five (5) business days of receipt of such request, access during normal business hours to any office or facility in which documents and records are stored or held and to inspect and copy any such documents in defendants control.
IT IS FURTHER ORDERED that, for a period of five (5) years from the date of entry of this Judgment, defendant shall:
A. immediately provide a copy of this Judgment to, and obtain a signed and dated acknowledgment of receipt of the same from, from each officer, director, managing agent, employee or independent contractor in any company or other business entity directly or indirectly owned, operated or controlled by defendant that engages in the offering for sale, sale, distribution, marketing, or sponsorship of any advertisement in any publication or program, and to each officer, director and managing agent of any company or other business entity that engages in the offering for sale, sale, distribution, marketing, or sponsorship of any advertisement in any publication or program at which defendant is employed; and
B. maintain, and upon reasonable notice make available to the FTC's representatives, the original and dated acknowledgments of the receipts required by this paragraph.
Each party to this Judgment hereby agrees to bear its own costs and attorney fees incurred in connection with this action; provided, however, in the event the FTC initiates proceedings to enforce any provision of this Judgment and provided further this Court determines that defendant has violated any term or provision of this Judgment, defendant shall pay the costs and attorney fees incurred by the FTC in connection with such proceedings.
IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this matter for the purpose of enabling the FTC and defendant 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 Judgment, for the enforcement of compliance therewith, or the punishment of violations thereof.
Defendant waives all claims under the Equal Access to Justice Act, 28 U.S.C. § 2412, as amended by Pub. L. No. 104-121, 110 Stat. 847, 863-64 (1996), and all rights to seek appellate review or otherwise challenge or contest the validity of this Judgment, or the temporary or preliminary orders entered in this proceeding, and further waive and release any claim they may have against the FTC, the receiver, or their employees, agents or representatives.
SO ORDERED this ______ day of __________, 1997.
WILLIAM C. LEE
The parties consent to the terms and conditions set forth above and to entry of this Stipulated Final Judgment without further notice to them.
FEDERAL TRADE COMMISSION
BRINLEY H. WILLIAMS
Federal Trade Commission
FOR THE RECEIVER
JAMES T. YOUNG
Warsco, Brogan & Strunk
FOR DEFENDANT RANDY B. LONIS
RANDY B. LONIS, pro se
208 Heatherwood Lane