STATES DISTRICT COURT
Magistrate Judge Seltzer
FEDERAL TRADE COMMISSION, Plaintiff,
DIANE M. JONAS, PAUL A. JONAS,
JAMES W. RAIM, ROBERT BRIAN ROEMER,
STIPULATED PRELIMINARY INJUNCTION AGAINST ROBERT ROEMER
Plaintiff Federal Trade Commission ("Commission"), pursuant to Sections 13(b) and 19(a) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. 53(b), 57b(a), filed a complaint for permanent injunction and other relief, including consumer redress, and applied ex parte for a temporary restraining order, for an order to show cause why a preliminary injunction should not be granted pursuant to Rule 65 of the Federal Rules of Civil Procedure and why a permanent receiver should not be appointed. The Court granted the Commission's application and entered a temporary restraining order on July 10, 1995. The Commission and Defendant Robert Brian Roemer have stipulated to entry of this preliminary injunction, and the Court makes the following findings of fact and conclusions of law:
1. This Court has jurisdiction of the subject matter of this case. Defendant Robert Brian Roemer has been served copies of the summons and complaint and the temporary restraining order, and he is subject to the jurisdiction of this Court.
2. Entry of this Order is in the public interest.
3. This Order does not represent a determination by the Court or an admission by Robert Brian Roemer that he has engaged and is likely to engage in acts and practices that violate Section 5(a) of the FTC Act, 15 U.S.C. 45(a), and the Federal Trade Commission Trade Regulation Rule entitled "Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures" (the "Franchise Rule"), 16 C.F.R. Part 436.
4. Defendant Robert Brian Roemer has waived any right to appeal this Order or the temporary restraining order entered in this case.
5. No security is required of any agency of the United States for issuance of an injunction. Fed. R. Civ. P. 65(c).
IT IS THEREFORE ORDERED that, for purposes of this preliminary injunction, the following definitions shall apply:
A. "Defendant" means Robert Brian Roemer.
B. "Receivership Defendants" means The Business Opportunity Center, Inc. and Market Systems, Ltd.
C. "Receiver" means Gerald B. Wald, equity receiver appointed in this action.
D. "Alcohol reducing agent" means any product or substance for which an express or implied representation is made that the product or substance will or may reduce or minimize inebriation, blood alcohol levels, or alcohol toxicity, including but not limited to the products or substances known as the "Alcohol Neutralizer," "pueraria," or "Neutrahol."
E. "Business venture" means any written or oral business arrangement, however denominated, whether or not covered by the Franchise Rule, which consists of the payment of any consideration for:
1. the right or means to offer, sell, or distribute goods or services (whether or not identified by a trademark, service mark, trade name, advertising, or other commercial symbol); and
2. more than nominal assistance to any person or entity in connection with or incident to the establishment, maintenance, or operation of a new business or the entry by an existing business into a new line or type of business.
F. "Franchise" and "Franchisee" shall be defined by Section 436.2(a) of the Franchise Rule, 16 C.F.R. 436.2(a), a copy of which is attached to this Order.
Scope of Order
IT IS FURTHER ORDERED that any provision of this Order that is binding upon the Defendant is binding upon him and upon his successors, assigns, officers, agents, servants, employees, attorneys, and those persons in active concert or participation with him who receive actual notice of this Order by personal service or otherwise, whether acting directly or through any corporation, partnership, or other entity or device. Within three (3) business days of entry of this Order, Defendant shall provide a copy of this Order to each of his successors, assigns, officers, agents, servants, employees, and attorneys, and to all persons or entities who have participated with him in the offering or selling of any alcohol reducing agent or any business venture involving an alcohol reducing agent. Within five (5) business days of entry of this Order, Defendant shall provide an affidavit to the Commission stating whether he has complied with this disclosure requirement and setting forth the name and address of each person or entity to whom a copy of the Order was provided, the date on which the person or entity was provided the copy, the name and address of the person who provided the copy, and the manner of service.
IT IS FURTHER ORDERED that Defendant is hereby enjoined from--
A. Making or assisting others in making express or implied misrepresentations concerning any alcohol reducing agent, including but not limited to misrepresentations concerning:
1. the safety or efficacy of the agent;
2. government review or approval of the agent; or
3. the results or findings of any tests or studies of the agent.
B. Violating or assisting others in violating any provisions of the Franchise Rule, 16 C.F.R. Part 436, including but not limited to the following:
1. failing to provide potential franchisees with a complete and accurate disclosure document within the times stated in the Franchise Rule, 16 C.F.R. 436.1(a);
2. failing to have a reasonable basis for any earnings claim at the time such claim is made, as required by the Franchise Rule, 16 C.F.R. 436.1(b)-(e); and
3. failing to provide potential franchisees with an earnings claim document when any earnings claim is made, as required by the Franchise Rule, 16 C.F.R. 436.1(b)-(e).
C. 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, receipts, receipt books, ledgers, personal and business cancelled checks and check registers, bank statements, appointment books, copies of business, personal, or property tax returns for any federal, state, or local government, and other documents or records of any kind which relate to his business practices or business or personal finances from January 1, 1988 to the present time.
D. Transferring or disclosing to any person or entity (except to the Commission or to the receiver or by Order of this Court) the names, addresses, telephone numbers, social security numbers, account numbers, or other identifying information of any person who purchased or inquired about a business venture involving the Alcohol Neutralizer or the Alcohol Neutralizer.
IT IS FURTHER ORDERED that Defendant is hereby restrained and enjoined from failing to place in escrow, with Richard Lubin, Esq. as escrow agent, any monthly personal income in excess $6,000 (six thousand dollars) and not less than $500 (five hundred dollars) each month. Defendant shall make the payment before the 10th of each month, and the escrow agent shall provide to the Commission a copy of a record of his deposit of the payment. The terms of the escrow shall provide that, upon entry of a final judgment in this case requiring a payment of money by the Defendant, (A) the escrow agent shall release to the Commission all money held in escrow up to the amount of the judgment and (B) any money held in escrow in excess of the judgment shall be released to the Defendant. If the action against the Defendant is resolved and no payment of money is required by him, the terms of the escrow shall require that all money held in escrow shall be released to the Defendant. Defendant shall account to the Commission before the 10th of each month for the preceding month's personal and business income, expenses, loans received, and accounts receivable. If Defendant places $10,000 (ten thousand dollars) in escrow within 5 (five) weeks of entry of this Order, he shall have no further obligation to make payments into escrow. All other constraints placed on Defendant's assets by the temporary restraining order of July 10, 1995 are hereby removed.
IT IS FURTHER ORDERED that Defendant's failure to provide the Commission or the Receiver with a completed financial statement, responses to requests for admissions, or other information, assets, or records as required by the temporary restraining order may be treated as contempt of this Order.
IT IS FURTHER ORDERED that the Commission and the receiver may notice depositions upon oral examination beginning upon entry of this Order and may depose Defendant upon five (5) business days' notice.
IT IS FURTHER ORDERED that, pursuant to Section 604 of the Fair Credit Reporting Act, 15 U.S.C. 1681b, any consumer reporting agency may furnish the Commission or the receiver with a consumer report concerning Robert Brian Roemer, or his successors or assigns.
IT IS FURTHER ORDERED that this Court retains jurisdiction of this matter for all purposes.
SO ORDERED, at Fort Lauderdale, Broward County, Florida, this _____day of _________, 1995, at ________.m.
The undersigned consent to entry of this Stipulated Preliminary Injunction: