UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

FEDERAL TRADE COMMISSION, Plaintiff,
 
v.
 
MARC HART, individually and doing business as G.M. & ASSOCS., Defendant.

CIVIL ACTION NO.

STIPULATED FINAL JUDGMENT AND ORDER FOR PERMANENT INJUNCTION

Plaintiff, Federal Trade Commission ("FTC" or "Commission"), has 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 defendant 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 Commission and defendant, Marc Hart, doing business as G.M. & Associates, by and through his counsel, 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. The Commission and defendant have consented to 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, defendant Marc Hart and the Commission, to enter this Final Judgment, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

FINDINGS

  1. This Court has jurisdiction of the subject matter of this action and of all the parties hereto;
  2. The Complaint states a claim upon which relief may be granted against defendant 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);
  3. Venue in this district is proper under 28 U.S.C. 1391(b) and (c), and 15 U.S.C. 53(b);
  4. Entry of this Final Judgment is in the public interest;
  5. The acts and practices of defendant were in or affecting commerce, as "commerce" is defined in Section 4 of the FTC Act, 15 U.S.C. 44;
  6. Defendant has 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; and
  7. Except as provided in Paragraphs IV and V of this Final Judgment, the Final Judgment does not constitute and shall not be interpreted to constitute either an admission by defendant or a finding by the Court of any facts, other than those set forth above, or that defendant has engaged in violations of the FTC Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, or any other law.

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.

ORDER

I.

IT IS THEREFORE ORDERED that defendant Marc Hart, in connection with the advertising, offering for sale, sale, or distribution of any good or service, is hereby permanently restrained and enjoined from:

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

  1. Anyone or any entity 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.

II.

IT IS FURTHER ORDERED that defendant Marc Hart is 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 Rule, 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.

III.

IT IS FURTHER ORDERED that defendant Marc Hart is 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 defendant, his employees or agents.

IV.

IT IS FURTHER ORDERED 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 to enforce its rights pursuant to this Final Judgment, including but not limited to a nondischargeability complaint in any subsequent bankruptcy proceeding.

V.

IT IS FURTHER ORDERED that defendant Marc Hart shall, within five (5) business days after the date of entry of this Final Judgment, submit to the Commission a truthful sworn statement in the form shown in Appendix A to this Final Judgment, that shall reaffirm and attest to the truthfulness, accuracy, and completeness of the financial statement that defendant Marc Hart executed on or about February 20, 1998. The Commission’s agreement to, and the Court’s approval of, this Final Judgment are expressly premised upon the truthfulness, accuracy, and completeness of this financial statement. If, upon motion by the Commission, this Court finds that defendant Marc Hart failed to file the sworn statement required by this Paragraph, or filed a financial statement that failed to disclose any material asset, or materially misrepresented the value of any asset, or made any other material misrepresentation in or material omission from the financial statement, the Commission may request that this Final Judgment be reopened for the purpose of requiring from defendant Marc Hart such equitable relief as this Court may deem appropriate; provided, however, that in all other respects this Final Order shall remain in full force and effect unless otherwise ordered by this Court; and provided further, that proceedings instituted under this provision are in addition to, and not in lieu of, any other civil or criminal remedies as may be provided by law, including other proceedings the Commission may initiate to enforce this Final Judgment. In any such enforcement proceeding, defendant Marc Hart waives any right to contest any of the allegations of the Complaint filed in this matter.

VI.

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.

VII.

IT IS FURTHER ORDERED that, in order to facilitate the Commission’s monitoring of compliance with the provisions of this Final Judgment, defendant Marc Hart 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 of such change; and

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

VIII.

IT IS FURTHER ORDERED that, in order to facilitate the Commission’s monitoring of compliance with the provisions of this Final Judgment, defendant Marc Hart 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 Marc Hart, such as the creation, incorporation, dissolution, assignment, sale, creation or dissolution of subsidiaries, 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 Marc Hart 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 Marc Hart 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; and

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

IX.

IT IS FURTHER ORDERED that, within sixty (60) days after the date of entry of this Final Judgment, defendant Marc Hart shall file a report with the Commission setting forth in detail the manner and form in which he has complied with this Final Judgment. This report shall include the current residence address for defendant Marc Hart and his employment status, including the name and business address of his current employer(s), if any, a statement of the nature of the business, and a statement of his duties and responsibilities in connection with the business.

X.

IT IS FURTHER ORDERED that all notices required of defendant Marc Hart 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

XI.

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.

XII.

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

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

For Plaintiff Federal Trade Commission

Dated:

Cindy A. Liebes
Attorney
Federal Trade Commission
Suite 5M35, Midrise Building
60 Forsyth Street, SW
Atlanta, Georgia 30303-2322
(404) 656-1359

For Defendant Marc Hart

Dated:

Marc Hart
Defendant

Dated:

Herman R. Tunsil
Attorney for Defendant Marc Hart
1419-4 East Rocksprings Rd., N.E.
Atlanta, GA 30306
(404) 607-7523