IN THE UNITED STATES DISTRICT COURT FEDERAL TRADE COMMISSION, Plaintiff, V. KENNETH WRIGHT, individually, Defendant. Civil Action No COMPLAINT FOR INJUNCTIVE AND OTHER EQUITABLE RELIEF Plaintiff, the Federal Trade Commission (“FTC” or “Commission”), for its complaint alleges as follows: 1. The Commission brings this action under section 13(b) of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. § 53(b), to secure preliminary and permanent injunctive relief, rescission of contracts, restitution, disgorgement, and other equitable relief for defendants’ unfair and deceptive acts and practices in violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.C. § § 45(a) and 52. JURISDICTION AND VENUE 2. This Court has jurisdiction over this matter under 28 U.S.C. § § 1331, 1337(a), and 1345, and under 15 U.S.C. § § 45(a)(1) and 53(b). 3. Venue in the United States District Court for the Northern District of Illinois is proper under 28 U.S.C. § § 1391(b) and (c) and 15 U.S.C. § 53(b). PLAINTIFF 4. Plaintiff, the Federal Trade Commission, is an independent agency of the United States Government created by statute. 15 U.S.C. § 41 et seq. The Commission is charged, inter alia, with enforcement of Sections 5(a) and 12 of the FTC Act, 15 U.S.C. § § 45(a) and 52. Section 5(a) of the FTC Act prohibits unfair or deceptive acts or practices in or affecting commerce. 15 U.S.C.§ 45(a). Section 12 of the FTC Act prohibits the dissemination or the causing to be disseminated of any false advertisement in order to induce the purchase of food, drugs, devices, or cosmetics. The Commission is authorized to initiate federal district court proceedings to enjoin violations of the FTC Act in order to secure such equitable relief as may be appropriate in each case, and to obtain consumer redress. 15 U.S.C. § § 53(b). DEFENDANT 5. Defendant Kenneth Wright has manufactured, advertised, offered for sale, sold, and distributed products to the public, including Eden’s Secret Nature’s Purifying Product. Individually or in concert with others, he participated in the acts or practices alleged in this complaint. His principal office or place of business is 423 East Ojai Avenue, Suite 107, Ojai, California 93023. 6. At all times pertinent to this complaint, defendant has transacted business in this district. COMMERCE 7. At all times relevant to this complaint, defendant Kenneth Wright has maintained a substantial course of business in the advertisement, sale and distribution of products to the public, including but not limited to, Eden’s Secret Nature’s Purifying Product, in or affecting commerce, as “commerce” is defined in Section 4 of the FTC Act, 15 U.S.C. § 44. DEFENDANT’S COURSE OF BUSINESS 8. Since at least 1993 through 1996, defendant Kenneth Wright advertised, offered to sell, sold and distributed Eden’s Secret Nature’s Purifying Product. Defendant’s advertisements included, but were not limited to, program-length radio infomercials which ran for 30 minutes or less and fit within normal radio broadcasting time slots. Defendant’s radio infomercials were and are broadcast on network and independent radio stations throughout the United States. The infomercial for Eden’s Secret Nature’s Purifying Product contained the following statements:
DEFENDANTS’ VIOLATIONS OF THE FTC ACT 9. Under Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), unfair or deceptive practices in or affecting commerce are unlawful. 10. Under Section 12(a)(2) of the FTC Act, 15 U.S.C. § 52(a)(2), the dissemination or the causing to be disseminated of any false advertisement in order to induce the purchase of food, drugs, devices, or cosmetics is unlawful. Under Section 12(b) of the FTC Act, 15 U.S.C.§ 52(b), the dissemination of any such false advertisement is an unfair or deceptive act or practice in or affecting commerce within the meaning of Section 5 of the FTC Act. The FTC Act defines “false advertisement” as an advertisement, other than labeling, which is misleading in a material respect. 15 U.S.C. § 55(a)(1). The FTC Act defines “drug” as articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease and articles (other than food) intended to affect the structure or any function of the body. 15 U.S.C.§ 55(c). COUNT I EDEN’S SECRET NATURE’S PURIFYING PRODUCT 11. Through the use of the statements referred to in Paragraph 8, and others not specifically set forth herein, defendant Kenneth Wright has represented, expressly or by implication, that:
12. In truth and in fact:
13. Therefore, the representations set forth in Paragraph 11 are false and misleading and constitute deceptive acts or practices in or affecting commerce, in violation of Sections 5(a) and 12(b) of the FTC Act, 15 U.S.C. § § 45(a) and 52(b). 14. Through the use of the statements referred to in Paragraph 8, and others not specifically set forth herein, defendant Kenneth Wright has represented, expressly or by implication, that he possessed and relied upon a reasonable basis that substantiated the representations set forth in Paragraph 11, at the time the representations were made. 15. In truth and in fact, defendant Kenneth Wright did not possess and rely upon a reasonable basis that substantiated the representations set forth in Paragraph 11, at the time the representations were made. 16. Therefore, the representation set forth in Paragraph 14 is false and misleading and constitutes deceptive acts or practices in or affecting commerce, in violation of Sections 5(a) and 12(b) of the FTC Act, 15 U.S.C. § § 45(a) and 52(b). CONSUMER INJURY 17. Consumers throughout the United States have suffered substantial monetary loss as a result of defendant’s unfair or deceptive acts or practices. Absent injunctive relief by this Court, defendant is likely to continue to injure consumers and harm the public interest. THIS COURT’S POWER TO GRANT RELIEF 18. Section 13(b) of the FTC Act, 15 U.S.C. § 53(b) empowers this Court to grant injunctive relief and such other relief as the Court may deem appropriate to prevent and remedy violations of any provision of the law enforced by the Federal Trade Commission. PRAYER FOR RELIEF WHEREFORE, plaintiff, the Federal Trade Commission, requests that this Court:
DATED: ________________, 1998 Respectfully submitted, DEBRA A. VALENTINE C. STEVEN BAKER ____________________________________ RUSSELL W. DAMTOFT |