|VIRGINIA A. DAVIDSON
Federal Trade Commission
Cleveland Regional Office
1111 Superior Avenue East, Suite 200
Cleveland, Ohio 44114
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FEDERAL TRADE COMMISSION
SCREEN TEST U.S.A., INC., a New Jersey corporation
FRED VANORE individually, d/b/a Vanore Productions and World Wide
Casting, Inc. and as an officer of Screen Test U.S.A., Inc. and American Child Actor and
Modeling Association, Inc.
AMERICAN CHILD ACTOR AND MODELING ASSOCIATION, INC. a New Jersey
PREMIER MARKETING, INC. a New Jersey corporation d/b/a Screen Test U.S.A.
ALICE B. McMANUS individually and as an officer of Premier Marketing,
R. J. IMS CORP. a New Jersey Corporation d/b/a Screen Test U.S.A.
RICHARD J. IMS, JR. individually and as an officer of R. J. Ims Corp.
PREMIER MARKETING, INC. a Connecticut corporation d/b/a Screen Test U.S.A
SHOWBIZ CENTRAL OF WESTCHESTER, INC. a Connecticut corporation d/b/a
Screen Test U.S.A.
JOHN T. YANNIELLI individually and as an officer of Premier Marketing,
Inc.and Showbiz Central of Westchester, Inc.
TOMORROW'S STARS, INC. a Florida corporation
EDWARD J. BAUER individually and as an officer of Tomorrow's Stars, Inc.
HELEN J. BAUER individually and as an officer of Tomorrow's Stars, Inc.
Civil Action No.
EX PARTE TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW
CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE
Plaintiff Federal Trade Commission ("FTC" or "Commission"),
pursuant to Sections 13(b) and 19 of the Federal Trade Commission Act ("FTC
Act"), 15 U.S.C. §§ 53(b) and 57(b), filed its Complaint for Injunctive and
Other Relief including consumer redress, and moved ex parte for a temporary
restraining order and an order to show cause why a preliminary injunction should not be
granted pursuant to Rule 65 of the Federal Rules of Civil Procedure
("Fed. R. Civ. P.") 65. The Court has considered the FTC's Complaint,
motion, memoranda, declarations and other exhibits in support of the motion and finds:
1. This Court has jurisdiction of the subject matter of this case, and there is good
cause to believe it will have jurisdiction of all parties.
2. Good cause exists to believe the Commission will ultimately succeed in establishing
that the defendants have engaged in, and are likely to engage in, acts and practices that
violate Section 5(a) of the FTC Act, 15 U.S.C. § 45(a) and the
Commission's Trade Regulation Rule Concerning Cooling-off Period for Sales Made at Home or
at Certain Other Locations, 16 C.F.R. Part 429 (the "Cooling-Off
Rule"), in connection with the advertising, offering for sale or sale of introductory
modeling or acting goods and services.
3. Good cause exists to believe that immediate and irreparable damage will occur to the
Court's ability to grant effective final relief for consumers in the form of monetary
redress from the transfer, disposition or concealment of defendants' assets or business
records unless defendants are immediately restrained and enjoined by order of this Court,
and that in accordance with Fed. R. Civ. P. 65(b) and Rule 12A of the New Jersey Federal
Practice Rules, the interests of justice require that the Commission's motion be heard ex parte
without prior notice to the defendants.
4. Good cause exists to appoint a temporary receiver for Defendants Screen Test U.S.A.,
Inc., American Child Actor and Modeling Association ("ACAMA"), Premier
Marketing, Inc., a New Jersey Corporation ("Premier Marketing New Jersey"), R.J.
Ims Corp., Premier Marketing, Inc., a Connecticut corporation ("Premier Marketing
Connecticut") and Showbiz Central of Westchester, Inc. (collectively the
5. Weighing the equities and considering the Commission's likelihood of ultimate
success, a temporary restraining order with conduct prohibitions, asset freeze, financial
disclosure, immediate access to business records and other expedited discovery is in the
public interest as to Defendants Screen Test U.S.A., Inc., Fred Vanore, ACAMA, Premier
Marketing New Jersey, Alice B. McManus, R.J. Ims Corp., Richard J. Ims, Jr., Premier
Marketing Connecticut, Showbiz Central of Westchester, Inc. and John T. Yannielli (collectively
the "Northeast Defendants").
6. Weighing the equities and considering the Commission's likelihood of ultimate
success, a temporary restraining order with expedited discovery and prohibition of the
destruction, transfer or concealment of records is in the public interest as to Defendants
Tomorrow's Stars, Inc., Edward J. Bauer and Helen J. Bauer (the "Florida
7. No security is required of any agency of the United States for issuance of a
restraining order. Fed. R. Civ. P. 65(c).
I. PROHIBITED MISREPRESENTATIONS
IT IS THEREFORE ORDERED, in connection with the advertising, offering
for sale or sale of introductory modeling or acting goods and services, that the Northeast
Defendants and their successors, assigns, officers, agents, servants, employees,
attorneys and those persons or entities in active concert or participation with them who
receive actual notice of this Order by personal service or otherwise -- whether acting
directly or through any corporation, subsidiary, division, or other device -- are hereby
temporarily restrained and enjoined from:
- Making any express or implied representation of material fact that is false or
misleading, including but not limited to any misrepresentation:
- 1. that their screen test is a professional's objective, selective, reliable evaluation
of whether a person will obtain work as an actor or model;
- 2. that photographs of the type they sell are necessary to attract agency representation
or modeling or acting jobs;
- 3. concerning their rate of success in finding agency representation or modeling or
acting jobs for consumers who have bought and completed their agency introduction program;
- 4. concerning the likelihood that any consumer will obtain agency representation or
modeling or acting jobs as the result of buying and completing their agency introduction
- 5. that American Child Actor and Modeling Association, Inc. ("ACAMA") is an
objective, independent, educational, charitable consumer protection organization or that
as such, ACAMA has endorsed or approved Screen Test or its screen test procedure.
For purposes of this Order, the word consumer includes the person who is the subject of
the screen test and/or agency introduction program and the person who is responsible for
making the purchase decision.
II. ASSET FREEZE
IT IS FURTHER ORDERED that the Northeast Defendants,
their agents, employees, officers, independent contractors, attorneys, successors and all
other persons in active concert or participation with them who receive actual notice of
this order by personal service or otherwise, and persons or entities under the Northeast
Defendants' control or under common control with them, are hereby restrained and
enjoined, until further order of this Court, from:
- Transferring, encumbering, concealing, selling, incurring charges or cash advances on
any credit card, or otherwise disposing of any funds, property, or assets of any kind,
wherever located, that are:
- 1. owned or controlled in whole or in part by any Northeast Defendant;
- 2. in the actual or constructive possession of any Northeast Defendant;
- 3. held by an agent of any Northeast Defendant as a retainer for the
agent's provision of services to any Northeast Defendant; or
- 4. owned by, controlled by or in the actual or constructive possession of, or otherwise
held for the benefit of, any entity directly or indirectly owned, managed or controlled by
any Northeast Defendant; these assets shall also include but are not
limited to any assets held by, for or under the name of any Northeast Defendant
at any bank or other financial institution of any kind; and
- Transferring any funds or other assets subject to this Order for attorney's fees, living
expenses, business expenses or any other purpose, except by Court order upon a showing of
III. FINANCIAL REPORTING
IT IS FURTHER ORDERED that, within five (5) days of receiving service
of this Order, each defendant shall prepare and deliver to the Court, counsel for the
Commission, and the receiver a completed financial statement on the forms attached to this
Order, verified under oath and accurate as of the date of service of this Order upon them,
for each such defendant individually and for each corporation of which such defendant is
IV. FINANCIAL INSTITUTIONS
IT IS FURTHER ORDERED that any financial or brokerage institution,
business entity or person having possession, custody or control of any records of any Northeast
Defendant, or of any account, safe deposit box or other asset titled in the name
of any Northeast Defendant, either individually or jointly or held for
the benefit of any Northeast Defendant, or that has maintained any such
account, safe deposit box or other asset at any time since January 1, 1996, shall:
- Hold and retain within its control and prohibit the transfer, encumbrance, pledge,
assignment, removal, withdrawal, dissipation, sale or other disposal of any such account
or other asset, except for transfers or withdrawals directed by the receiver or by further
- Deny access to any safe deposit box titled individually or jointly in the name of any Northeast
Defendant or otherwise subject to access by any Northeast Defendant.
- Provide to counsel for the FTC and the receiver, within three (3) business days of
notice of this Order, a sworn statement setting forth:
1. the identification of each account or asset;
2. the balance of each account or a description of the nature and value of each asset as
of the close of business on the day this Order is served and, if the account or asset has
been closed or moved, the balance or value removed and the person or entity to whom it was
3. the identification of any safe deposit box subject to access by any Northeast
- Allow Commission representatives immediate access to inspect and copy all records of any
Northeast Defendant and all documents relating to any account, safe
deposit box or other asset of any Northeast Defendant. Alternatively, any
financial institution, other entity or person may arrange to deliver to the Commission
copies of any records it seeks for a charge not to exceed fifteen cents (15¢) per page
- Cooperate with all reasonable requests by the receiver relating to implementation of
this Order, including transferring funds at the receiver's direction and producing records
related to the Receivership Defendants' accounts.
V. FOREIGN ASSETS
IT IS FURTHER ORDERED that within three (3) business days following
service of this Order, the Northeast Defendants and their successors,
assigns, officers, agents, servants, employees, and those persons in active concert or
participation with them who receive actual notice of this Order by personal service or
otherwise -- whether acting directly or through any corporation, subsidiary, division or
other device -- shall:
- Take such steps as are necessary to repatriate to the territory of the United States of
America all assets held by or for the benefit of any Northeast Defendant,
or under their direct or indirect control, jointly or singly, which were transferred
outside of the territory of the United States.
- Thereafter hold and retain any such assets within their control and otherwise prevent
any transfer, disposition, or dissipation whatsoever of any such assets or funds.
VI. IMMEDIATE ACCESS TO NORTHEAST DEFENDANTS'
IT IS FURTHER ORDERED that the Northeast Defendants
and their successors, assigns, officers, agents, servants, employees, and those persons in
active concert or participation with them who receive actual notice of this Order by
personal service or otherwise, whether acting directly or through any corporation,
subsidiary, division, or other device, and the receiver, shall allow the Commission's
representatives immediate access to the business premises, mail drops, storage facilities
and all other business locations used by the Northeast Defendants to
operate franchise locations in New Jersey, New York, Connecticut and Pennsylvania for
five (5) business days, during reasonable hours as the receiver shall deem
appropriate. The purpose of the access shall be to inspect and copy materials relevant to
this action. The Commission and receiver may be accompanied by other law enforcement
agents for the purpose of securing the premises. The Commission may exclude Northeast
Defendants and their officers, directors, employees, and agents from the premises
during this time. The Commission may, through photographs and drivers' licenses, identify
and obtain information from individuals at the premises. The Commission may remove
materials from the business premises so they may be inspected, inventoried and copied. The
Commission shall return materials so removed within five (5) business days of
completing said copying. In no event shall the Commission retain the materials longer than
ten (10) business days.
IT IS FURTHER ORDERED that the United States Marshal shall accompany
the Commission's representatives, agents and assistants onto Northeast Defendants'
business premises to assure compliance with the terms of this Order.
VII. OTHER EXPEDITED DISCOVERY
IT IS FURTHER ORDERED, pursuant to Fed. R.
Civ. P. 26(d) and 30(a), that the Commission is granted leave to conduct
discovery at any time after service of this Order. The Commission may
depose witnesses upon two (2) days' notice. Pursuant to Fed. R. Civ. P. 33,
34 and 36, the Commission may require defendants to respond to interrogatories, requests
for production of documents or requests for admissions within five (5) days after service
of the interrogatories or requests.
VIII. RECORD KEEPING
IT IS FURTHER ORDERED that defendants, their successors, assigns,
officers, agents, servants, employees and those persons in active concert or participation
with them who receive actual notice of this Order by personal service or otherwise,
whether acting directly or through any corporation, subsidiary, division or other device,
are hereby temporarily restrained and enjoined from:
A. failing to create and maintain books, records, accounts and data which in reasonable
detail, accurately, fairly and completely reflect their incomes, disbursements,
transactions and use of monies.
B. destroying, erasing, mutilating, concealing, altering, transferring or otherwise
disposing of in any manner, directly or indirectly, any contracts, accounting data,
correspondence, advertisements, computer tapes, discs or other computerized records,
books, written or printed records, handwritten notes, telephone logs, telephone scripts,
receipt books, ledgers, personal and business canceled checks and check registers, bank
statements, appointment books, copies of federal, state or local business or personal
income or property tax returns and other documents or records of any kind which relate to
defendants' business practices or business or personal finances from January 1, 1992,
IT IS FURTHER ORDERED that defendants shall immediately provide a copy
of this Order to each of the corporate defendants' affiliates, franchises, subsidiaries,
divisions, successors, assigns, directors, officers, managing agents, employees,
representatives and independent contractors and shall, within three (3) business days from
the date of service of this Order, serve on plaintiff affidavits identifying the names,
titles, addresses and telephone numbers of the persons and entities whom they have served
pursuant to this provision. The receiver has no obligation under this provision.
IT IS FURTHER ORDERED that Defendants Fred Vanore,
Alice B. McManus, Richard J. Ims, Jr., and John T. Yannielli
shall notify the Commission at least seven (7) days prior to any discontinuance of their
present businesses or employment and of their affiliation with any new or previously
inactive business or employment. Each notice shall include said defendant's
new business address and a statement of the nature of the new business or employment and
of his or her duties and responsibilities in connection with that business or employment.
X. APPOINTMENT OF RECEIVER
IT IS FURTHER ORDERED that ___________________________________________
is appointed as temporary receiver, with the full power of an equity receiver, for the
Receivership Defendants; and all the funds, properties, premises, accounts and
other assets directly or indirectly owned, beneficially or otherwise by them. The receiver
is directed, and has the authority, to:
- assume full control of the Receivership Defendants by removing Defendants
Fred Vanore, Alice B. McManus, Richard J. Ims, Jr., and
John T. Yannielli, and any other officer, independent contractor, employee
or agent from control or management of the affairs of the Receivership Defendants or
from taking any action on or behalf of the Receivership Defendants while
the receivership is in effect;
- take custody, control and possession of all the funds, property, premises, mail and
other assets of the Receivership Defendants or that are in their
possession or under their control;
- sue for, collect, receive and take into possession all goods, chattels, rights, credits,
monies, effects, lands, leases, books and records, work papers and records of accounts,
including computer-maintained information and other papers and documents of the Receivership
- preserve, hold and manage the Receivership Defendants' assets, and
perform all acts necessary to preserve the value of those assets;
- prevent withdrawal or misapplication of funds entrusted to the Receivership
Defendants and obtain an accounting thereof;
- manage and administer the Receivership Defendants' businesses, at the
receiver's discretion and until further order of this Court, by performing all acts
necessary or incidental thereto; this includes the hiring of personnel -- including, but
not limited to, attorneys and accountants -- and dismissing personnel or suspending
- disburse funds that the receiver deems necessary and advisable to preserve the property
of the Receivership Defendants or carry out the receiver's mandate under
- collect any monies owed the Receivership Defendants;
- institute, defend, compromise, adjust, intervene in, become a party to or otherwise
dispose of any or all actions or proceedings in local, state, federal or foreign courts
that the receiver deems necessary and advisable to preserve the property of the Receivership
Defendants or carry out the receiver's mandate under this Order.
IT IS FURTHER ORDERED that the temporary receiver shall be compensated
for services rendered to the receivership estate during the pendency of the case. Prior to
paying any compensation, the receiver shall file and serve upon all parties a request with
the Court, outlining the services rendered and the related fees and expenses. The
Defendants shall have no right to object to such request. The Commission shall
file any papers responsive to the request within ten (10) days. The receiver shall not pay
any compensation except upon order of the Court.
IT IS FURTHER ORDERED, in light of the appointment of the receiver,
that the Receivership Defendants are hereby prohibited from filing a
petition for relief under the United States Bankruptcy Code, 11 U.S.C. § 101 et seq.,
without prior permission from this Court.
XII. OTHER ACTIONS STAYED
IT IS FURTHER ORDERED that, except by leave of this Court, during the
pendency of the receivership ordered herein, defendants and all customers, principals,
investors, creditors, stockholders, lessors and other persons seeking to establish or
enforce any claim, right or interest against or on behalf of the Receivership
Defendants or any of their subsidiaries or affiliates (excluding plaintiff), and
all others acting for or on behalf of such persons, including attorneys, trustees, agents,
sheriffs, constables, marshals and other officers and their deputies, and their respective
attorneys, servants, agents and employees, are hereby stayed from:
- commencing, prosecuting, continuing or enforcing any suit or proceeding against the Receivership
Defendants, except that such actions may be filed to toll any applicable statute
- commencing, prosecuting, continuing or entering any suit or proceeding in the name or on
behalf of the Receivership Defendants, their subsidiaries or affiliates;
- accelerating the due date of any claimed obligation, enforcing any lien upon, taking or
attempting to take or retain possession of any property of the Receivership
Defendants or any property claimed by the Receivership Defendants,
or attempting to foreclose, forfeit, alter or terminate any of the Receivership
Defendants' interests in property, whether such acts are part of a judicial
proceeding or otherwise;
- using self-help or executing or issuing, or causing the execution or issuance of, any
court attachment, subpoena, replevin, execution or other process for the purpose of
impounding or taking possession of, or interfering with, or creating or enforcing a lien
upon any property, wheresoever located, owned by or in the possession of the Receivership
Defendants, or the receiver or any agent appointed by the receiver; and
- taking any action or doing anything whatsoever to interfere with the receiver taking
control, possession or management of the property subject to this receivership, or to
harass or interfere with the receiver in any way, or to interfere in any manner with the
exclusive jurisdiction of this Court over the property and assets of the Receivership
IT IS FURTHER ORDERED that all defendants shall fully cooperate with
and assist the receiver, and are hereby restrained and enjoined from directly or
indirectly hindering or obstructing the receiver in any manner.
XIII. TRANSFER OF CONTROL TO RECEIVER
IT IS FURTHER ORDERED that, immediately upon service of this Order
upon them, Receivership Defendants shall transfer to the receiver their
control of the following:
A. all of the Receivership Defendants' funds, assets, property owned
beneficially or otherwise, and all other assets, wherever situated;
B. all of the Receivership Defendants' books and records of accounts,
financial and accounting records, balance sheets, income statements, bank records
(including monthly statements, canceled checks, records of wire transfers and check
registers), consumer lists, title documents and other papers;
C. all funds and other assets belonging to members of the public that are now held by
the Receivership Defendants.
XIV. RECEIVER'S BOND
IT IS FURTHER ORDERED that the receiver shall file with the Clerk of
this Court a bond in the sum of $ __________________ with sureties to be approved by the
Court, and conditioned that the receiver will well and truly perform the duties of the
office and abide by and perform all acts the Court directs.
XV. CREDIT REPORTS
IT IS FURTHER ORDERED, pursuant to Section 604 of the Fair Credit
Reporting Act, 15 U.S.C. § 1681b, that any credit reporting agency may furnish
the Commission with a credit report concerning any defendant.
IT IS FURTHER ORDERED that agents or representatives of the
Commission may contact the Northeast Defendants or their agents or
representatives directly and anonymously for the purpose of monitoring compliance with
Provision I of this Order, and may tape-record any oral communications that occur in the
course of such contacts.
IT IS FURTHER ORDERED that this Order shall expire ten (10) days after
entry unless, within such time, for good cause shown, it is extended for a like period, or
unless defendants consent that it may be extended for a longer period and the reasons
therefor entered of record.
For the purposes of this Order, all correspondence and service of pleadings on
plaintiff shall be addressed to
Virginia A. Davidson, Esq.
Federal Trade Commission -- Cleveland Regional Office
Eaton Center, Suite 200 -- 1111 Superior Avenue
Cleveland, Ohio 44114-2507
Telephone (216) 2633404 Fax (216) 2633426
XIX. PRELIMINARY INJUNCTION HEARING
IT IS FURTHER ORDERED that defendants shall prepare and deliver to the
Court and to the Commission, not later than 4:30 p.m. of the third (3rd) business day
prior to the preliminary injunction, any opposition to issuance of a preliminary
injunction, including any declarations, exhibits, memoranda or other evidence on which
they intend to rely.
IT IS FURTHER ORDERED that, if any party to this action intends to
present the testimony of any witness at the preliminary injunction hearing in this matter,
that party shall, at least forty-eight (48) hours prior to the scheduled date and time of
hearing, file with this Court and serve on all other parties, a witness list which shall
include the name, address and telephone number of any such witness, and either a summary
of the witness' expected testimony or the witness' affidavit revealing the substance of
such witness' expected testimony.
IT IS FURTHER ORDERED that defendants shall appear before this Court
in Room ______ of the United States Courthouse, 50 Walnut Street, Newark, New Jersey
07101-0419, on the __________ day of _________________, 1999, at o'clock a.m./p.m.,
to show cause, if any there be, why this Court should not enter a preliminary injunction,
pending final ruling on the Complaint, against said defendants enjoining them from further
violations of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and the
Commission's Trade Regulation Rule Concerning Cooling-off Period for Sales Made at Home or
at Certain Other Locations, 16 C.F.R. Part 429 and imposing such additional
relief as may be appropriate.
IT IS FURTHER ORDERED that this Court retains jurisdiction of this
matter for all purposes.
SO ORDERED, this __________ day of ____________________, 1999, at
United States District Judge