IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA

UNITED STATES OF AMERICA, Plaintiff

v.

THE ORIGINAL HONEY BAKED HAM COMPANY OF GEORGIA, INC. Defendant.

Civil Action No. _______________

CONSENT DECREE AND ORDER FOR CIVIL PENALTIES, INJUNCTIVE AND OTHER RELIEF

WHEREAS plaintiff, the United States of America, has commenced this action by filing the Complaint herein; defendant has waived service of the Summons and Complaint; the parties have been represented by the attorneys whose names appear hereafter; and the parties have agreed to settlement of this action upon the following terms and conditions, without adjudication of any issue of fact or law, without admitting liability for any of the matters alleged in the Complaint, and without this Consent Decree and Order constituting any finding or evidence against the defendant;

THEREFORE, upon stipulation of plaintiff and defendant, it is hereby ORDERED, ADJUDGED, and DECREED as follows:

1. This Court has jurisdiction of the subject matter and of the parties.

2. The Complaint states a claim upon which relief may be granted against the defendant under Sections 5(a)(1), 5(m)(1)(A), 13(b) and 16(a) of the Federal Trade Commission Act, 15 U.S.C. 45(a)(1), 45(m)(1)(A), 53(b) and 56(a).

DEFINITION

3. For the purposes of this Consent Decree, the term "Rule" means the Federal Trade Commission's Trade Regulation Rule Concerning Mail or Telephone Order Merchandise, 16 C.F.R. Part 435, or as the Rule may hereafter be amended.

CIVIL PENALTY

4. Defendant The Original Honey Baked Ham Company of Georgia, Inc., its successors and assigns, shall pay to plaintiff a civil penalty, pursuant to section 5(m)(1)(A) of the Federal Trade Commission Act, 15 U.S.C.  45(m)(1)(A), in the amount of forty-five thousand dollars ($45,000.00). .

5. Defendant shall make the payment required by Paragraph 4 within five (5) days of the date of entry of this Consent Decree by electronic fund transfer in accordance with the instructions provided by the Office of Consumer Litigation, Civil Division, U.S. Department of Justice, Washington, D.C. 20530, for appropriate disposition.

6. In the event of any default in payment, which default continues for ten (10)days beyond the due date of payment, the entire unpaid penalty, together with interest, as computed pursuant to 28 U.S.C. 1961, from the date of default to the date of payment, shall immediately become due and payable.

INJUNCTION

7. Defendant, its successors and assigns, and its officers, agents, servants, employees and attorneys, and all other persons in active concert or participation with it who receive actual notice of this Consent Decree by personal service or otherwise, are hereby enjoined from violating, directly or through any corporation, subsidiary, division or other device, any provision of the Rule, in any way, including but not limited to:

a. Failing to timely offer to the buyer an option either to consent to a delay in shipping or to cancel the order and receive a prompt refund, as required by 16 C.F.R. 435.1(b)(1);
 
b. Failing to deem the order canceled and to make a prompt refund to buyers who are entitled to such refunds under the Rule, as required by 16 C.F.R.   435.1(c)(5)

8. In the event the Mail Order Rule is hereafter amended or modified, defendants' compliance with that Rule as so amended or modified shall not be deemed a violation of this injunction. A copy of the Mail Order Rule is attached hereto as "Appendix A" and incorporated herein as if fully set forth verbatim.

COMPLIANCE

9. Defendant shall, within thirty (30) days of the entry of this Consent Decree, provide a copy of this Consent Decree and the Business Guide to the Federal Trade Commission's Mail or Telephone Order Merchandise Rule (Jan. 1995) ("Business Guide") to each of its supervisory or managerial agents, servants, employees and attorneys who are engaged in defendant's mail, telephone, facsimile or Internet order sales business, secure from each such person a signed statement acknowledging receipt of a copy of this Consent Decree and Business Guide, and shall, within ten (10) days of complying with this paragraph, file an affidavit with the Associate Director, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Ave., NW, Washington, D.C. 20580, setting forth the fact and manner of their compliance, including the name and title of each person to whom a copy of the Consent Decree and Business Guide has been provided.

10. For a period of five (5) years from the date of entry of this Consent Decree, defendant, its successors and assigns, shall maintain and make available to the Federal Trade Commission, within seven (7) days of the date of receipt of a written request, business records demonstrating compliance with the terms and provisions of this Consent Decree.

11. For a period of twenty (20) years from the date of entry of this Consent Decree, defendant, its successors and assigns, shall notify the Associate Director, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Ave., NW, Washington, D.C. 20580, at least thirty (30) days prior to any merger, incorporation, dissolution, assignment, sale resulting in the emergence of a successor corporation, creation or dissolution of a subsidiary or parent, or any other changes in corporate status which may affect defendant's obligations under this Consent Decree. Provided, however, that with respect to any proposed change in the corporation about which Defendant learns less than thirty (30) days prior to the date such action is to take place, Defendant shall notify the Commission's Associate Director for Enforcement as soon as practicable after obtaining such knowledge.

12. One hundred twenty (120) days after entry of this Consent Decree, defendant shall provide a written report to the Federal Trade Commission, sworn to under penalty of perjury, setting forth in detail the manner and form in which defendant has complied and is complying with this Consent Decree. This report shall include but not be limited to:

a. a specimen copy of each delay option notice used for purposes of complying with any provision of the Rule, and a statement setting forth in detail the procedures in place for providing such notices;
 
b. a specimen copy of each advertisement or telemarketing script that contains a shipping or delivery representation; and
 
c. a statement setting forth in detail defendant's procedures for providing prompt refunds pursuant to the Rule.

Defendant shall mail this written report to: the Associate Director for Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Ave., NW,Washington, D.C. 20580.

13. Defendant is hereby required, in accordance with 31 U.S.C.  7701, to furnish to the Federal Trade Commission its taxpayer identifying number (employer identification number), which shall be used for purposes of collecting and reporting on any delinquent amount arising out of their relationship with the government.

CONTINUING JURISDICTION

14. This Court shall retain jurisdiction of this matter for the purposes of enabling any of the parties to this Consent Decree to apply to the Court at any time for such further orders or directives as may be necessary or appropriate for the interpretation or modification of this Consent Decree, for the enforcement of compliance therewith, or for the punishment of violations thereof.

JUDGMENT IS THEREFORE ENTERED in favor of plaintiff and against defendant, pursuant to all the terms and conditions recited above.

Dated this ___ day of _____, 2__.

UNITED STATES DISTRICT JUDGE

The parties, by their respective counsel, hereby consent to the terms and conditions of the Consent Decree as set forth above and consent to the entry thereof. Defendant waives any rights that may arise under the Equal Access to Justice Act, 28 U.S.C. 2412, concerning the investigation and prosecution of this action.

FOR THE UNITED STATES OF AMERICA:

DAVID W. OGDEN
Acting Assistant Attorney General
Civil Division
U.S. Department of Justice


United States Attorney
Northern District of Georgia

By:

Assistant United States Attorney

EUGENE THIROLF
Director
Office of Consumer Litigation

By: _________________________________

Attorney
Office of Consumer Litigation
Civil Division
U.S. Department of Justice
P.O. Box 386
Washington, D.C. 20044

FOR THE FEDERAL TRADE COMMISSION:

_________________________________
ELAINE D. KOLISH
Associate Director
Division of Enforcement
Bureau of Consumer Protection
Federal Trade Commission

_________________________________
HEATHER A. HIPPSLEY
Assistant Director
Division of Enforcement
Bureau of Consumer Protection

 

JOEL N. BREWER
Attorney
Division of Enforcement
Bureau of Consumer Protection
Federal Trade Commission
600 Pennsylvania Ave., NW
Washington, D.C. 20580
(202) 326-3309

FOR THE DEFENDANT:

THE ORIGINAL HONEY BAKED HAM COMPANY OF GEORGIA, INC.

By:

KENT SMITH
President
The Original Honey Baked Ham Company of Georgia, Inc.
5445 Triangle Parkway, Suite 400
Norcross, GA 30092

Kilpatrick Stockton LLP
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Attorney for Defendant

By:

FREDERICK H. VON UNWERTH