UNITED STATES DISTRICT COURT UNITED STATES OF AMERICA, Plaintiff, v. PVI, INC., d/b/a Photo Vend International, a corporation, Defendant. Case No. 98-6935 CIV-FERGUSON Magistrate Judge Snow STIPULATED JUDGMENT AND ORDER FOR PERMANENT INJUNCTION Plaintiff, the United States of America, acting upon notification and authorization to the Attorney General by the Federal Trade Commission ("FTC" or the "Commission"), has commenced this action by filing the Complaint herein. Defendant PVI, Inc., d/b/a Photo Vend International, has been served with the summons and the complaint. The parties to this action are represented by the attorneys whose names appear hereafter; and the parties agree to settlement of this action without adjudication of any issue of fact or law and without the defendant admitting liability for any of the violations alleged in the Complaint; THEREFORE, on the joint motion of the parties it is hereby ORDERED, ADJUDGED AND DECREED as follows:
DEFINITIONS For the purpose of this Stipulated Judgment and Order, the following definitions shall apply:
ORDER I. IT IS ORDERED, ADJUDGED AND DECREED that only the defendant, its successors, assigns, officers, agents, employees, attorneys, servants, franchise brokers, and those persons in active concert or participation with them who receive actual notice of this Stipulated Judgment and Order by personal service or otherwise, whether acting directly or through any business entity, corporation, subsidiary, division or other device, in connection with the advertising, offering for sale, licensing, contracting, sale or other promotion, in or affecting commerce, of a franchise, be and are:
II. IT IS FURTHER ORDERED that only defendant, its successors, assigns, officers, agents, employees, attorneys, servants, franchise brokers, and those persons in active concert or participation with them who receive actual notice of this Stipulated Judgment and Order by personal service or otherwise, whether acting directly or through any business entity, corporation, subsidiary, division or other device, in connection with: 1) advertising, offering for sale, licensing, contracting, selling or otherwise promoting, in or affecting commerce, of a franchise, 2) telemarketing, or 3) offering for sale or the sale of any franchise or business venture, are hereby permanently restrained and enjoined from making any false or misleading statement or representation of material fact, whether directly or by implication, or orally or in writing, concerning any franchise or any product, service, or business venture, including but not limited to any or all of the following:
III. IT IS FURTHER ORDERED that defendant shall pay to the plaintiff, pursuant to Section 5(m)(1)(A) of the Federal Trade Commission Act, 15 U.S.C. § 45(m)(1)(A), a civil penalty. Defendant shall pay a civil penalty in the amount of eleven thousand dollars ($11,000.00). Defendant shall provide the civil penalty amount to its undersigned attorney, Andrew Cove, on or before July 5, 1999. Mr. Cove shall hold the money in escrow until this Stipulated Judgment and Order is entered. Within five (5) days of receipt of notice that this Stipulated Judgment and Order has been entered, Mr. Cove shall make the payment to the plaintiff required by this Paragraph. Payment shall be made by certified or cashier's check made payable to the Treasurer of the United States and delivered to the Director, Office of Consumer Litigation, Civil Division, P.O. Box 386, Washington, D.C. 20044. The cover letter accompanying the check shall include the title of this litigation and a reference to DJ# 102-2968. In the event the defendant defaults on the payment required to be paid by this Paragraph, the entire unpaid civil penalty due from the defendant, together with interest computed under 28 U.S.C. § 1961 -- accrued from the date of default until the date of payment -- shall be immediately payable. IV. IT IS FURTHER ORDERED that for five (5) years after the date of entry of this Stipulated Judgment and Order, or for so long as PVI, Inc., d/b/a Photo Vend International, or its successors and assigns, sell business ventures or engages in telemarketing, whichever period is shorter, PVI, Inc., d/b/a Photo Vend International, shall notify the Commission at least thirty (30) days prior to any proposed change in PVI, Inc., d/b/a Photo Vend International, including, but not limited to, dissolution, assignment, or sale resulting in the emergence of a successor corporation, or any other change in the corporation which may affect any compliance obligation arising out of this Stipulated Judgment and Order. The notice required by this Paragraph shall be sent to the following: Associate Director, Division of Marketing Practices, Federal Trade Commission, Room H238, 600 Pennsylvania Avenue, N.W., Washington, DC 20580. V. IT IS FURTHER ORDERED that, for a period of five (5) years from the date of entry of this Stipulated Judgment and Order, or for so long as it continues to offer and sell business ventures or engage in telemarketing, whichever period is shorter, only defendant, its successors, assigns, officers, agents, employees, attorneys, servants, franchise brokers, and those persons in active concert or participation with them who receive actual notice of this Stipulated Judgment and Order by personal service or otherwise, are hereby restrained and enjoined from failing to create and maintain:
VI. IT IS FURTHER ORDERED that for the purposes of determining or securing compliance with this Stipulated Judgment and Order, and subject to any legally recognized privilege, the defendant, for a period of five (5) years from the date of entry of this Stipulated Judgment and Order, or for so long as it continues to offer and sell business ventures or engage in telemarketing, whichever period is shorter, shall, upon reasonable written notice,
VII. IT IS FURTHER ORDERED that, except to comply with a request or order of a government or court, or requirement of the Franchise Rule or other applicable law or regulation, the defendant is hereby permanently enjoined and restrained from providing or transferring to any person the name, address or telephone number of any person who purchase or purchased a business opportunity venture from the defendant or any of its agents, representatives, brokers or employees. VIII. IT IS FURTHER ORDERED that the defendant shall, within thirty (30) days of the entry of this Stipulated Judgment and Order, provide a copy of this Stipulated Judgment and Order and of the Franchise Rule to each corporate officer, and to each employee, agent and franchise broker engaged in the marketing or sale of franchises. Defendant shall obtain from each such officer, employee, agent and franchise broker, a written statement, acknowledging receipt of a copy of the aforesaid documents. Defendant shall, within ten (10) days of complying with this paragraph, serve upon the FTC, an affidavit setting forth the fact and manner of its compliance, including the name and title of each person to whom a copy of this Stipulated Judgment and Order has been provided. The notice required by this Paragraph shall be addressed to the Associate Director, Division of Marketing Practices, Federal Trade Commission, Room H238, 600 Pennsylvania Avenue, NW, Washington, DC 20580. IX. IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this matter for the purpose of enabling the parties to apply to the Court at any time for such further orders and directions as may be necessary or appropriate for the interpretation, modification or enforcement of this Stipulated Judgment and Order, or for the punishment of violations thereof. X. Defendant agrees that this Stipulated Judgment and Order does not entitle defendant to seek or to obtain attorneys' fees as a prevailing party under the Equal Access to Justice Act, 28 U.S.C. § 2412, and defendant further waives any rights to attorneys' fees that may arise under said provision of law. XI. The parties, by their respective counsel, hereby consent to entry of the foregoing
Stipulated Judgment and Order which shall constitute a final judgment and order in this
matter. The parties further stipulate and agree that the entry of the foregoing Stipulated
Judgment and Order shall constitute a full, complete and final settlement of this action.
The parties further stipulate that this Stipulated Judgment and Order embodies all of the
agreements among the parties and that the parties are have not relied upon any
representations or statements not included herein. ANDREW N. COVE JOSEPH GARRITY DAVID W. OGDEN THOMAS E. SCOTT BARBARA PETRAS KAREN M. VALENTINE SO ORDERED this day of , 1999. Wilkie D. Ferguson, Jr. |