UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

FEDERAL TRADE COMMISSION, and STATE OF ARKANSAS ex rel. Winston Bryant, Attorney General, Plaintiffs

v.

SURECHEK SYSTEMS, INC. d/b/a CONSUMER CREDIT CORP., and CONSUMER CREDIT DEVELOPMENT CORP., a Georgia corporation;

DOUGLAS S. DERICKSON, individually and as an officer of SureChek Systems, Inc., d/b/a Consumer Credit Corp., and Consumer Credit Development Corp.; and STEVE LOVERN, individually and as an officer of SureCheK Systems, Inc., d/b/a Consumer Credit Corp., and Consumer Credit Development Corp.; Defendants

CIVIL ACTION NO.
1-97-CV-2015 (JTC)

STIPULATED FINAL JUDGMENT AND ORDER FOR PERMANENT INJUNCTION AS TO DEFENDANTS SURECHEK SYSTEMS, INC. and DOUGLAS S. DERICKSON

Plaintiffs, Federal Trade Commission ("FTC" or "Commission"), and the State of Arkansas have filed a complaint pursuant to Sections 13(b) and 19 of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. 53 (b) and 57b, and Section 6(b) of the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. 6105(b), charging the defendants in this action with violations of Section 5 of the FTC Act, 15 U.S.C. 45, and with violations of the FTC's Telemarketing Sales Rule, 16 C.F.R. Part 310.

The plaintiffs, by and through their counsel, and defendants, SureCheK Systems, Inc. and Douglas S. Derickson have agreed to the entry of this Stipulated Final Judgment and Order for Permanent Injunction ("Final Judgment") by this Court in order to resolve all matters in dispute in this action involving defendants SureCheK Systems, Inc. and Derickson. Except as noted in the "Findings" (Section II - Paragraphs 4 - 13 set out below), the plaintiffs and defendants SureCheK Systems, Inc. and Derickson have consented to the entry of this final judgment without trial or adjudication of any issue of law or fact herein.

Being fully advised in the premises and acting upon the joint motion of the parties, SureCheK Systems, Inc., Derickson, the Commission, and the State of Arkansas, to enter this Final Judgment, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

I. DEFINITIONS

For purposes of this Final Judgment, the following definitions shall apply:

1. "Telemarketing" shall mean a plan, program, or campaign which is conducted to induce the purchase of goods or services by use of one or more telephones and which involves more than one interstate telephone call.

2. "Material" means likely to affect a person's choice of, or conduct regarding, goods or services.

3. "Final Judgment" means this Stipulated Final Judgment and Order for Permanent Injunction.

II. FINDINGS

4. This Court has jurisdiction of the subject matter of this action and of defendants SureCheK Systems, Inc. and Derickson;

5. The Complaint states a claim upon which relief may be granted against defendants SureCheK Systems, Inc. and Derickson under Sections 5, 13(b) and 19(a) of the FTC Act, 15 U.S.C. 45, 53(b) and 57b, and under Section 6(b) of the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. 6105(b);

6. Venue in this district is proper under 28 U.S.C. 1391(b) and (c), and 15 U.S.C. 53(b);

7. Entry of this Final Judgment is in the public interest;

8. The acts and practices of defendants were in or affecting commerce, as "commerce" is defined in Section 4 of the FTC Act, 15 U.S.C. 44;

9. Section 13(b) of the FTC Act, 15 U.S.C. 53(b), empowers this Court to grant injunctive and other ancillary relief, including consumer redress, disgorgement, and restitution, to prevent and remedy any violations of any provision of law enforced by the Commission;

10. Section 19 of the FTC Act, 15 U.S.C. 57b, authorizes this Court to grant such relief as the Court finds necessary to redress injury to consumers or other persons resulting from defendants' violations of the Telemarketing Sales Rule, including the rescission or reformation of contracts, and the refund of money;

11. Section 4(a) of the Telemarketing Act, 15 U.S.C. 6103(a), authorizes the Court to grant to the State of Arkansas, on behalf of its residents, injunctive and other equitable relief, including damages, restitution, other compensation, and such further and other relief the Court deems appropriate;

12. This Court, in the exercise of its equitable jurisdiction, may award other ancillary relief to remedy injury caused by the defendants' law violations; and

13. Defendants have waived all claims under the Equal Access to Justice Act, 28 U.S.C. 2412, and all rights to seek judicial review or otherwise challenge or contest the validity of this Final Judgment.

III. ORDER - INJUNCTION

14. IT IS THEREFORE ORDERED that defendants SureCheK Systems, Inc. and Derickson, in connection with the advertising, offering for sale, sale, or distribution of any good or service, are hereby permanently restrained and enjoined from:

A. Making, expressly or by implication, any false or misleading statement or representation that:

1. Defendant SureCheK Systems, Inc. or defendant Derickson will provide consumers or arrange for consumers to receive credit cards;

2. Consumers' applications for credit cards have been approved; or

3. Consumers will receive credit cards regardless of their creditworthiness; and

B. Making, expressly or by implication, orally or in writing, any false or misleading statement or representation about, or failing to disclose any material fact relating to, the cost or conditions for receiving any extension of credit.

15. IT IS FURTHER ORDERED that defendants SureCheK Systems, Inc. and Derickson are hereby permanently restrained and enjoined from violating any provision of the Telemarketing Sales Rule, 16 C.F.R. Part 310, including but not limited to:

A. Requesting or receiving payment of any fee or consideration from any person in advance of that person obtaining a loan or other extension of credit while guaranteeing or representing a high likelihood of success in obtaining or arranging a loan or other extension of credit for a person, as prohibited by the Telemarketing Sales Rules, 16 C.F.R. 310.4(a)(4);

B. Misrepresenting the total costs to purchase, receive, or use any goods or services that are the subject of a sales offer, as prohibited by the Telemarketing Sales Rule, 16 C.F.R. 310.3(a)(2)(i);

C. Failing to disclose in a clear and conspicuous manner, the total costs and all material restrictions, limitations, or conditions to purchase, receive, or use any goods or services that are the subject of a sales offer before the customer pays for the goods or services offered, as prohibited by the Telemarketing Sales Rule, 16 C.F.R. 310.3(a)(1)(i) and (ii);

D. Making a false or misleading statement to induce any person to pay for goods or services, as prohibited by the Telemarketing Sales Rule, 16 C.F.R. 310.3(a)(4); and

E. Providing substantial assistance or support to any seller or telemarketer while knowing or consciously avoiding knowing that the seller or telemarketer is engaged in any act or practice that violates Sections 310.3(a) or (c), or 310.4 of the Telemarketing Sales Rule, 16 C.F.R. 310.3(a) and (c), and 310.4.

16. IT IS FURTHER ORDERED that defendants SureCheK Systems, Inc. and Derickson are hereby permanently restrained and enjoined from providing to any person, except agents of the Commission or other law enforcement authorities, the name, address, telephone number, Social Security number or credit card or bank account number of any person who engaged in a telemarketing transaction with any of the defendants named in this action.

17. IT IS FURTHER ORDERED that for a period of five (5) years, commencing with the date of entry of this Final Judgment, defendants SureCheK Systems, Inc. and Derickson and their assigns, agents, servants, and employees, and those persons in active concert or participation with any of them who receive actual notice of this Final Judgment by personal service or otherwise, whether acting directly or through any corporation, subsidiary, division, trust, investment, or other device, are hereby restrained and enjoined from creating, operating or controlling any business entity, including any partnership, limited partnership, joint venture, sold proprietorship, or corporation, without first providing the plaintiffs with a written statement disclosing (1) the name of the business entity, (2) the address and telephone number of the business entity, (3) the names of the business entity's officers, directors, principals, managers and employees, and (4) a detailed description of the business entity's proposed activities.

IV. ORDER - COMPLIANCE

18. IT IS FURTHER ORDERED that, in order to facilitate the monitoring of compliance with the provisions of this Permanent Injunction, defendant Derickson shall, for a period of five (5) years commencing with the date of entry of this Final Judgment:

A. Notify the Commission in writing of any change in his residential address within ten (10) days after such change; and

B. Notify the Commission in writing of any change in his employment status within ten (10) days after such change. Such notice shall include the name and address of each business that defendant Derickson is employed by, a statement of the nature of the business, and a statement of his duties and responsibilities in connection with the business.

19. IT IS FURTHER ORDERED that, in order to facilitate the monitoring of compliance with the provisions of this Permanent Injunction, defendants SureCheK Systems, Inc. and Derickson shall, for a period of five (5) years commencing with the date of entry of this Final Judgment:

A. Notify the Commission in writing at least thirty (30) days prior to the effective date of any proposed change in the structure of any business entity owned or controlled by defendant SureCheK Systems, Inc. or defendant Derickson, such as the creation, incorporation, dissolution, assignment, sale, or any other changes that may affect compliance obligations arising out of this Final Judgment;

B. After receiving reasonable notice from the Commission, permit duly authorized representatives of the Commission access during normal business hours to the offices of any business owned or controlled in whole or in part by defendant SureCheK Systems, Inc. or defendant Derickson to inspect and copy all documents relating in any way to any conduct subject to this Final Judgment;

C. Refrain from interfering with duly authorized representatives of the Commission who wish to interview the officers, directors, or employees of any business owned or controlled in whole or in part by defendant SureCheK Systems, Inc. or defendant Derickson with respect to any conduct subject to this Final Judgment;

D. Upon written request by any duly authorized representative of the Commission, submit written reports (under oath, if requested) and produce documents on thirty (30) days notice with respect to any conduct subject to this Final Judgment;

E. Appear on fifteen (15) days notice for deposition with respect to any conduct subject to this Final Judgment; and

F. Retain all documents necessary to determine compliance with this Order including, but not limited to: names and addresses of all customers; records of the amount each customer paid; sales scripts; names and addresses of all sales representatives; income and expense records; and customer complaints received and responses to such complaints.

20. IT IS FURTHER ORDERED that the plaintiffs' agreement to this Final Judgment is expressly premised upon the truthfulness, accuracy, and completeness of defendants' financial condition as represented to counsel for the Commission in the financial statements provided by defendants to counsel for plaintiffs on July 28, 1997, and in the sworn deposition testimony given by defendant Derickson on September 18, 1997, which contain material information upon which the plaintiffs relied in negotiating and agreeing to the amount and/or terms of the redress payment stated in the Final Judgment. If, upon motion by the Commission or the State of Arkansas, this Court finds that defendants SureCheK Systems, Inc. or Derickson 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 statements or in the deposition of defendant Derickson taken by the Commission, the Final Judgment herein shall be reopened for the purpose of modifying the amount and/or terms of the redress payment; provided, however, that in all other respects this Final Judgment shall remain in full force and effect unless otherwise ordered by the Court; and provided further, that proceedings instituted under this paragraph 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 or the State of Arkansas may initiate to enforce this Final Judgment. Defendants SureCheK Systems, Inc. and Derickson further authorize the Commission and the State of Arkansas to verify all information provided in the financial statements with all appropriate third parties, including but not limited to financial institutions.

21. IT IS FURTHER ORDERED that all notices required of defendant Derickson by this Final Judgment shall be mailed to the following address:

Director
Atlanta Regional Office
Federal Trade Commission
Suite 5M35, Midrise Building
60 Forsyth Street, SW
Atlanta, GA 30303-2322

V. ORDER - EQUITABLE MONETARY RELIEF

22. IT IS FURTHER ORDERED that:

A. Judgment in the amount of One Million Dollars ($1,000,000) is entered in favor of the Commission and the State of Arkansas against defendants SureCheK Systems, Inc. and Derickson, jointly and severally, for equitable monetary relief, including but not limited to, consumer redress and/or disgorgement and for paying any attendant expenses of administering any redress fund;

B. Douglas S. Derickson and SureCheK Systems, Inc. hereby assign all right, title, and interest in account numbers 0138784 and 6016976 at Summit National Bank in Atlanta, Georgia, to the State of Arkansas. Defendant Derickson affirms that he has authority to assign all right, title, and interest in the accounts to the State of Arkansas, that the accounts are not encumbered, and that neither he nor SureCheK Systems, Inc. will encumber the accounts prior to the Court's entry of this Order. Defendant Derickson shall pay all fees, penalties, and taxes associated with the State of Arkansas' liquidation of the accounts. Upon entry of this Order, the State of Arkansas shall liquidate the accounts, and use the proceeds thereof to pay redress to Arkansas consumers who did business with defendants SureCheK Systems, Inc. and Derickson;

C. Douglas S. Derickson and SureCheK Systems, Inc. hereby assign all right, title, and interest in monies held by U.S. Check Byte and Automatic Check Systems, Inc. on behalf of U.S. Merchandise & Jewelry Exchange, to the Commission. Defendant Derickson affirms that he has authority to assign all right, title, and interest in the monies to the Commission, that the monies are not otherwise encumbered, and that neither he nor SureCheK Systems, Inc. will encumber the monies prior to the Court's entry of this Order. Defendant Derickson shall pay all fees, penalties, and taxes associated with the Commission's liquidation of the monies being held by U.S. Check Byte and Automatic Check Systems, Inc. Upon entry of this Order, the proceeds thereof shall be used to pay redress to consumers in accordance with the terms of this Order;

D. The Commission and the State of Arkansas shall have full and sole discretion to determine the criteria for participation in any consumer redress program implemented pursuant to this Order. If the Commission and the State of Arkansas, in their sole discretion, determine that redress is wholly or partially impractical, any funds not so used shall be deposited in the United States Treasury as disgorgement. The Commission and the State of Arkansas in their sole discretion may use a designated agent to administer consumer redress. The defendants SureCheK Systems, Inc. and Derickson, each acknowledge and agree that this judgment for equitable monetary relief is solely remedial in nature and is not a fine, penalty, punitive assessment, or forfeiture.

VI. ORDER - SUBSEQUENT PROCEEDINGS

23. IT IS FURTHER ORDERED that defendants SureCheK Systems, Inc. and Derickson agree that the facts as alleged in the Complaint filed with this Final Judgment shall be taken as true in any subsequent litigation filed by the Federal Trade Commission or the State of Arkansas to enforce their rights pursuant to this Final Judgment, including but not limited to a nondischargeability complaint in any subsequent bankruptcy proceeding.

24. IT IS FURTHER ORDERED that each party to this Final Judgment hereby agrees to bear its own costs and attorneys' fees incurred in connection with this action; provided, however, in the event the Federal Trade Commission or the State of Arkansas initiate proceedings to enforce the provisions of this Final Judgment, and provided further, that the Court determines that the defendants SureCheK Systems, Inc. or Derickson violated any terms or provisions of this Final Judgment, the defendants shall pay the costs and attorneys' fees incurred by the Federal Trade Commission or the State of Arkansas in connection with proceedings to enforce this Final Judgment.

25. IT IS FURTHER ORDERED that 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. Nothing in this final order shall be construed as a waiver of private rights, causes of action, or remedies that any person may have against defendants SureCheK Systems, Inc. and Derickson with respect to the business practices addressed by this Final Judgment.

26. IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this matter for all purposes, including but not limited to the enforcement of compliance with the Final Judgment, or the punishment of violations thereof.

SO ORDERED, this _________ day of ___________________, 1998.

____________________________________
United States District Judge
Jack T. Camp

The parties hereby stipulate and agree to the terms and conditions set forth above and consent to entry of this Final Judgment.

For Plaintiffs the Federal Trade Commission and the State of Arkansas

Dated: __________

____________________________________
Cindy A. Liebes
Attorney for Plaintiff
Federal Trade Commission
Suite 5M35, Midrise Building
60 Forsyth Street, SW
Atlanta, Georgia 30303-2322
(404) 656-1353

Dated: __________

____________________________________
James B. DePriest
Attorney for Plaintiff
Senior Assistant Attorney General
Arkansas Attorney General's Office
323 Center St., Suite 200
Little Rock, Arkansas 72201
(501) 682-6150

For Defendants SureCheK Systems, Inc. and Douglas S. Derickson

Dated: __________

___________________________________
Douglas S. Derickson, Individually
and as President of SureCheK Systems, Inc.

Dated: __________

___________________________________
Thomas deRosay
Attorney for Defendants