IN THE UNITED STATES DISTRICT COURT
Civil Action No. 98 C 0059 Judge Grady STIPULATED PERMANENT INJUNCTION AND FINAL JUDGMENT Plaintiff Federal Trade Commission (“Commission”) has filed a complaint for a permanent injunction and other relief pursuant to Sections 13(b) and 19 of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. §§ 53(b) and 57b, and the Telemarketing and Consumer Fraud and Abuse Prevention Act (“Telemarketing Act”), 15 U.S.C. § 6101, et seq., charging defendants, Darryl André, Angela André, Bryan D. Smith, and Anthony Q. Roberts, with violations of Section 5 of the FTC Act, 15 U.S.C. § 45, and the FTC's Trade Regulation Rule entitled “Telemarketing Sales Rule” (“the Telemarketing Rule” or “the Rule”), 16 C.F.R. Part 310. Plaintiff People of the State of Illinois, by and through its Attorney General, (“State of Illinois”) has joined in the complaint for a permanent injunction and other relief pursuant to Section 4(a) of the Telemarketing Act, 15 U.S.C. § 6103(a). The State of Illinois, as part of the same case or controversy, has also charged the defendants with violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1, et seq. (1996) (“Consumer Fraud Act”), and the Illinois Credit Services Organization Act 815 ILCS 605/1, et seq. (1996) (“Credit Services Act”). The parties have consented to the entry of this Stipulated Permanent Injunction and Final Judgment (“Stipulated Order”) without a trial or adjudication of any issue of law or fact herein. The defendants enter into this Stipulated Order without admission of any fact alleged by the plaintiffs. NOW, THEREFORE, defendants, Darryl André, Angela André, Bryan D. Smith, and Anthony Q. Roberts, and plaintiffs, the Commission and the State of Illinois, have requested the Court to enter this Stipulated Order. It is therefore ORDERED, ADJUDGED AND DECREED as follows: FINDINGS
DEFINITIONS
I. PROHIBITED BUSINESS ACTIVITIES IT IS THEREFORE ORDERED that, in connection with telemarketing of advance fee loans or any other product or service, the defendants are hereby permanently restrained and enjoined from: A. Misrepresenting, either orally or in writing, directly or by implication, any material fact, including, but not limited to, misrepresentations that the defendants will provide consumers with, or arrange for consumers to receive, a major credit card, such as a Visa or MasterCard, for a one-time fee; B. Violating the Telemarketing Rule, 16 C.F.R. Part 310, et seq. (a copy of which is attached as Appendix A and incorporated by reference), including, but not limited to:
C. Violating Section 310.3(a)(2) of the Rule, 16 C.F.R. § 310.3(a)(2), by misrepresenting, directly or by implication, any material aspect of the performance, efficacy, nature, or central characteristics of goods or services that are the subject of a sales offer. 16 C.F.R. 310.3(a)(2)(iii); D. Violating Section 2 of the Illinois Consumer Fraud and Deceptive Business Practices Act by engaging in the following acts or practices:
E. Violating the Illinois Credit Services Organization Act by engaging in the following acts or practices:
II. RIGHT TO REOPEN IT IS FURTHER ORDERED that, within three (3) business days after the date of entry of this Stipulated Order, the named defendants shall submit to the Commission a truthful sworn statement (in the form shown on Appendix B to this Stipulated Order) that shall reaffirm and attest to the truthfulness, accuracy, and completeness of their respective financial statements, namely that of defendant Darryl André on January 21, 1998; of defendant Angela André on January 21, 1998; of defendant Bryan D. Smith on February 2, 1998; and of defendant Anthony Q. Roberts on or around March 1, 1998. The plaintiffs' agreement to this Stipulated Order is expressly premised upon the financial condition of the named defendants as represented in their respective financial statements, which contain material information upon which the plaintiffs relied in negotiating and agreeing upon this Stipulated Order. If, upon motion by the plaintiffs or either one of them, this Court finds that any named defendant failed to file the sworn statement required by this section, or if any named defendant failed to disclose any material asset, or materially misrepresented the value of any asset, or made any other material misrepresentation in or omissions from his or her respective financial statement, the plaintiffs may request that the judgment herein be reopened for the purpose of requiring additional monetary consumer redress or obtaining other equitable relief; provided, however, that in all other respects this judgment shall remain in full force and effect, unless otherwise ordered by this Court; and provided further, that proceedings instituted under this section in that event are in addition to and not in lieu of any other civil or criminal remedies as may be provided by law, including, but not limited to, contempt proceedings, or any other proceedings that plaintiffs might initiate to enforce this Stipulated Order. III. MONITORING PROVISIONS IT IS FURTHER ORDERED that in order to facilitate the plaintiffs’ monitoring of compliance with the provisions of this Stipulated Order, the named defendants shall, for five (5) years after the date of entry of this Stipulated Order: A. Notify the plaintiffs in writing, within thirty (30) days after service of this Order, of their current residential addresses and employment status, including the names and business addresses of their current employers, if any; B. Notify the plaintiffs in writing within thirty (30) days of any change in their residential addresses. Such notification shall include their new addresses and telephone numbers; C. Notify the plaintiffs in writing within thirty (30) days of any change in their employment status; such notice shall include the names, addresses, and telephone numbers of their new employers, a statement of the nature of the businesses, and a statement of the named defendants' duties and responsibilities in connection with such businesses; D. Notify the plaintiffs in writing at least thirty (30) days prior to the effective date of any proposed change in the structure of any business entity owned or controlled by any named defendant, such as creation, incorporation, dissolution, assignment, sale, creation or dissolution of subsidiaries, or any other changes that might affect compliance obligations arising out of this Stipulated Order; E. Upon seven (7) days’ notice from the plaintiffs, permit duly authorized representatives of the plaintiffs access during normal business hours to the offices of any company or any person under any named defendant's control, to inspect or to copy any documents belonging to any named defendant, and all documents of any company owned or controlled by any named defendant, in whole or in part, relevant to any conduct subject to this Stipulated Order; F. Refrain from interfering with duly authorized representatives of the plaintiffs who wish to interview any named defendant's employers, agents, or employees (who may have counsel present) relating in any way to any conduct subject to this Stipulated Order; G. Upon thirty (30) days’ written notice by any duly authorized representative of the plaintiffs, submit written reports (under oath, if requested) and produce documents with respect to any conduct subject to this Stipulated Order; H. Appear on fifteen (15) days’ notice for deposition with respect to any conduct subject to this Stipulated Order; and I. Within ten (10) days of the entry of this decree,
Provided further, that the plaintiffs may otherwise monitor the defendants’ compliance with this order by investigators posing as consumers, potential investors, suppliers, or other entities, to the same extent to which such means would be lawful were the plaintiffs or the plaintiffs' attorneys not aware of any representation of such defendant by counsel. IV. ACKNOWLEDGMENT OF RECEIPT OF ORDER IT IS FURTHER ORDERED that, within five (5) business days after receipt by defendants of this Order as entered by the Court, the named defendants shall submit to the Commission a truthful sworn statement, in the form show on Appendix C, that shall acknowledge receipt of this Final Order. V. MAINTAIN RECORDS IT IS FURTHER ORDERED that the defendants shall, for a period of five (5) years after the date of the entry of this Stipulated Order for Permanent Injunction and Final Judgment, maintain and upon request make available to the plaintiffs all business records demonstrating their compliance with the terms and provisions of this Stipulated Order, including, but not limited to, documents and materials comprising and relating to orders, payments, advertisements, and consumer complaints or refund requests as well as any responses thereto, and personnel records. VI. NOTICES IT IS FURTHER ORDERED that all notices required of the named defendants in this Stipulated Order shall be made to the following two (2) addresses:
or any such other addresses as the plaintiffs shall specify. VII. FILING REPORT IT IS FURTHER ORDERED that within sixty (60) days after the date of entry of this Stipulated Order, the named defendants shall file a report with the plaintiffs setting forth the manner and form in which each has complied with this Order. VIII. RETENTION OF JURISDICTION IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this matter for all purposes. The Clerk's office shall mark the instant case administratively closed. The parties agree and stipulate to entry of the foregoing Stipulated Permanent Injunction and Final Judgment. For the FEDERAL TRADE COMMISSION: DATED: ____________________________________________ EVAN SIEGEL/Ill. Bar # 06211459 For the ATTORNEY GENERAL OF THE STATE OF ILLINOIS: DATED: ____________________________________________ CHARLES G. FERGUS ELEANOR F. PORTER For the DEFENDANTS DEFENDANTS ________________________________ DATED: _________________ Darryl André, also known as Darryl A. Roberts and Darryl Jones, individually and doing business as Creative Concepts, Premier Card Services, Premier Services, Tower Financial Services, Tower Services, Prime Credit Services, Prime Services, Colonial Financial Services, Colonial Financial, and Consumer Express ________________________________ DATED: _________________ Angela André, also known as Angela Jones, individually and doing business as Premier Card Services, Premier Services, Tower Financial Services, Tower Services, Prime Credit Services, Prime Services, Colonial Financial Services, Colonial Financial, and Consumer Express ________________________________ DATED: _________________ Anthony Q. Roberts, individually and doing business as ________________________________ DATED: _________________ Bryan D. Smith, individually and doing business as There being no just reason for delay, the Clerk of Court is hereby directed to enter this Order. Issued at , .m. United States District Judge , 1998 |