IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
1. I am over eighteen years of age and am a citizen of the United States. I am a member in good standing of the Bar of the Commonwealth of Pennsylvania, and I have applied to practice before this Court pro hac vice. I am legal counsel for the plaintiff Federal Trade Commission ("the Commission"), Division of Advertising Practices, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. I submit this certification pursuant to Rule 65(b)(2) of the Federal Rules of Civil Procedure in support of the Commission's request that the accompanying Temporary Restraining Order be issued without notice to defendants.
2. Unless indicated otherwise, I have personal knowledge of the facts stated herein and if called would competently testify thereto.
3. The evidence set forth in the Commission's Memorandum of Law and the supporting exhibits demonstrate that defendants should not receive notice of the commencement of this action, including the Commission's application for a temporary restraining order for the following reasons:
a. Defendants engage in a nationwide scheme that has caused substantial injury to consumers and competition;
b. Defendants have violated Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a), by deceptively and unfairly advertising and promoting adult entertainment services;
c. Defendants employ two practices in or affecting commerce against consumers and competition: "pagejacking" and "mouse trapping." Pagejacking deceives consumers using Internet search engines so they will visit the defendants' sexually explicit, adult-oriented Web sites ("adult sites"). Mouse trapping unfairly impedes consumers' ability to return to the Web site previously visited (i.e., the search engine results list Web page) or from exiting the Internet.
After I read a news article on msnbc.com (see Attachment A), which described Carlos Pereira's pagejacking scheme, I contacted Dr. David Landrigan, who was quoted in the article, and asked him to send me whatever information he had concerning these practices. On May 22, Dr. Landrigan forwarded an e-mail to me that he had sent to Network Solutions. In that e-mail, Dr. Landrigan listed several examples of Carlos Pereira's pagejacking. See Attachment B. In that e-mail, I saw that the search engine results for the various stolen Web pages listed atariz.com and piratelynx.com as the domain names. In that same e-mail, Dr. Landrigan also forwarded results for "Whois" searches he had performed for atariz.com and piratelynx.com, both of which list Carlos Pereira as the registrar.
On May 22 and 24, 1999, I investigated this matter further by searching for "kids Internet games" using the AltaVista search engine. When I clicked on hyperlinks for what appeared to be relevant results, I was transported instead to the defendants' adult sites. At the defendants' adult sites, my repeated attempts to go back to the search results list or exit the Internet were impeded by the defendants' manipulation of my Internet browser controls, which repeatedly forced me to visit other adult sites of the defendants or their affiliates before finally exiting.
On May 22, my search for "kids Internet games" returned a list of 3,576,535 Web pages. The first result on the list appeared as follows:
1. Kids Internet Games - Home Page
THE starting place for exploring Kids Internet Games, from your
Last modified 17-May-99 - page size 31K - in English [ Translate ]
(See Attachment C).
On May 24, my search for "kids Internet games" returned a list of 3,588,105 Web pages. The second result on the list appeared as follows:
2. Kids Internet Games - Home Page
THE starting place for exploring Kids Internet Games, from your
Last modified 23-May-99 - page size 31K - in English [ Translate ]
(See Attachment D).
In both sets of search results, I clicked on the bold, underlined title hyperlink for "Kids Internet Games - Home Page," particularly because of their rankings. Instead of linking to the Mining Company's corresponding "Kids Internet Games Home Page" (see Attachment E), I was transported instead to "www.taboosisters.com," one of the defendants' adult sites (see Attachment F). In each case, when I clicked on the back and exit buttons on my Internet browser, as many as ten new Internet browser windows, including smaller console or daughter windows, opened up one to three at a time and I was instead forced to visit additional adult sites or see ads pop-up for them. If I did not click quickly to close the new browser windows as they opened up, any attempts to close single windows only caused additional windows to open up as well. In both cases, I was able to close my Internet browser and exit the Internet only after several failed attempts to do so and repeatedly being redirected to the defendants' adult sites.
Later, I accessed the "Whois" database available at the Web site for Network Solutions, Inc. and determined that the domain names used for the bridge pages ("atariz.com" and "tabooanal.com") were registered by Carlos Pereira and Kewl Photographies. The "taboosisters.com" domain name was also registered by Kewl Photographies.
On June 1, Dr. Landrigan forwarded an e-mail to me that he received from Carlos.Pereira@homemail.com. See Attachment G. In that e-mail, Carlos states, "everybody in this bussiness [sic] knows that i [sic] have TOTAL CONTROL on Altavista [sic]."
d. Defendants are likely to hide or change their identities, and destroy records if they receive any notice of this action prior to the service of a temporary restraining order. Irreparable harm to consumers victimized by defendants' deceptive scheme will result if defendants have the opportunity to destroy business records or disappear, thereby rendering ineffective any final relief this Court may order at the ultimate disposition of this matter.
4. The FTC's past experience shows that defendants who receive notice of the Commission's intent to file an action under circumstances similar to this case often attempt to undermine any order the Commission obtains to preserve the status quo by immediately dissipating or concealing assets, or destroying documents. For example, on information and belief in the following cases, defendants destroyed documents:
a. In FTC v. Academic Guidance Services, No. 92-3001 (AET) (D.N.J.), a case involving the telemarketing of business opportunities, the defendants discovered that the Commission intended to file its case against them (and to seek an ex parte TRO) the following week. An informant told the Commission that the defendants then leased a document shredder and spent the weekend destroying documents. The Commission verified that a shredder had been leased, and one of defendant's employees confirmed that documents had been shredded; and
b. In FTC v. Applied Telemedia Engineering and Management, Inc., No. 91-635 (S.D. Fla.), another investment fraud case, the defendants were advised, pursuant to an agreement with the Commission, that the Commission had filed its complaint and intended to seek a restraining order with an asset freeze from the Court. When the Commission's agents went to defendants' offices to serve process, they observed defendants removing boxes of documents from the premises. The Commission moved for, and received, an ex parte TRO the following day.
On information and belief, in the following cases, defendants took other actions upon receiving notice of our action, most often withdrawing funds:
a. In FTC v. Michael Chierico, No. 96-1754-Civ-Moore (S.D. Fla. June 28, 1996), within hours after service of an ex parte temporary restraining order with asset freeze upon an individual defendant, he and his wife requested issuance of a $500,000 certified check from their joint brokerage account, made payable to her alone. The check was issued and deposited in a bank account in her sole name;
b. In FTC v. World Class Network, Inc. et al., No. SACV-97-162-AHS (EEx) (C.D. Cal. Feb. 28, 1997), upon learning of the FTC having obtained an ex parte temporary restraining order, one defendant immediately went to a bank and withdrew over $200,000, giving cash to relatives to pay bills. The spouse of another defendant withdrew over $100,000 and left the state to open an out-of-state account and deposit funds;
c. In FTC v. American National Cellular, Inc., No. CV 85-7375 WJR (C.D. Cal.), an investment fraud case, the district court issued an ex parte TRO with an asset freeze on November 12, 1985. A defendant learned of the court's ruling and immediately withdrew $1.2 million from his bank accounts before the banks were served with a copy of the freeze order. The defendant fled California and dissipated the money while living overseas;
d. In FTC v. Lopinto, No. CV S-93-561 (LDG) (D. Nev.), a prize promotion case, the district court issued an ex parte TRO with an asset freeze in June 1993. The order was served on a bank where one of the corporate defendants maintained an account. However, before the bank could implement the freeze, an agent of the corporate defendant (who knew of the freeze) withdrew $12,300 from the defendant's account;
e. In FTC v. Thomas E. O'Day, No. 94-1108-CIV-ORL-22 (M.D. Fla.), a telemarketing fraud case, a district court denied the Commission's request in October 1994 to issue an ex parte TRO with asset freeze and scheduled a noticed hearing on the relief sought. Several days later, the FBI executed a search warrant on the defendants' business premises as the Commission served notice of its action and the upcoming hearing. Within hours, an individual defendant withdrew approximately $200,000 from one of his bank accounts, thereby making the Commission's ability to preserve those funds for consumer redress difficult; and
f. In FTC v. Telecommunications of America, Inc., No. 95-693-CIV-ORL-22 (M.D. Fla. July 12, 1995), a business opportunity fraud case, the Court amended the Commission's proposed TRO by applying the asset freeze provision solely to the named defendants or their affiliates or subsidiaries, and not applying the asset freeze to other corporations, partnerships, or entities directly or indirectly owned, managed, or controlled by any named defendants. Upon serving the TRO, the FTC discovered that the defendants were in the process of changing their corporate identity, while continuing the same fraudulent scheme. The individual defendants had opened bank accounts under the new corporate names, but those accounts were unaffected by the revised TRO. Although the Commission obtained an expanded TRO the next day, in the interim, the defendants had emptied the new bank accounts of all funds, amounting to almost $20,000.
5. For the above reasons, as contemplated by Federal Rule of Civil Procedure 65(b), there is good cause to believe that immediate and irreparable damage to consumers will result from the concealment, transfer, or destruction of defendants' records, and from defendants hiding their whereabouts, if defendants receive advance notice of the FTC's application for a temporary restraining order with other equitable relief. Thus, it is in the interests of justice that this Court grant such application without notice.
6. The Commission has made no effort to give defendants notice of this action.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on September 13, 1999 in Washington, DC.
Attorney for Plaintiff
Federal Trade Commission
600 Pennsylvania Ave., N.W.
Washington, D.C. 20580