UNITED STATES DISTRICT COURT
UNITED STATES OF AMERICA, Plaintiff,
ROBERT M. OLIVER, individually, doing business as U.S. CONSUMER PROTECTION AGENCY, and CONSUMER PROTECTION AGENCY of BAY COUNTY, Defendant.
Case No. 5:98cv00160/RH
Plaintiff, the United States of America, acting upon notification and authorization to the Attorney General by the Federal Trade Commission ("FTC" or "Commission"), has commenced this action by filing the Complaint herein. Defendant ROBERT M. OLIVER d/b/a U.S. CONSUMER PROTECTION AGENCY and CONSUMER PROTECTION AGENCY OF BAY COUNTY has been served with or waives service of the Summons and Complaint. The parties have appeared pro se or have been represented by 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 and without defendant admitting liability for any of the matters alleged in the complaint;
THEREFORE, on the joint motion of plaintiff and defendant, it is hereby ORDERED, ADJUDGED AND DECREED that:
1. This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. §§ 1331 and 1345, and 15 U.S.C. § 45, 53(b) and 57b.
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 19 of the FTC Act, 15 U.S.C. §§ 45(a)(1), 45(m)(1)(A), 53(b), and 57b.
3. Entry of this Final Order is in the public interest.
4. The defendant enters into this Final Order freely and without coercion. Defendant further acknowledges that he has read the provisions of this Final Order and is prepared to abide by them.
5. The parties hereby waive all rights to appeal or otherwise challenge or contest the validity of this Final Order.
For the purpose of this Final Order, the following definitions shall apply:
1. "OLIVER," "defendant OLIVER," or "defendant" means ROBERT M. OLIVER, individually, and doing business as U.S. CONSUMER PROTECTION AGENCY and CONSUMER PROTECTION AGENCY OF BAY COUNTY, and his agents, servants, employees, and those persons in active concert or participation with him who receive actual notice of this Final Order by personal service or otherwise, whether acting directly or through any corporation, subsidiary, division, or other device.
2. The "Franchise Rule" is the Commission's Trade Regulation Rule entitled "Disclosure Requirements and Prohibitions concerning Franchising and Business Opportunity Ventures," 16 C.F.R. Part 436. A copy of the Franchise Rule is attached hereto as Exhibit A and incorporated herein as if fully set forth.
3. "Franchise" and "Franchisor" are defined as in Sections 436.2(a) and (c) of the Franchise Rule, 16 C.F.R. § 436.2(a) and (c), and the term "franchise" includes "business opportunity ventures," as discussed in the FTC's Final Interpretive Guide for the Franchise Rule, 44 Fed. Reg. 49966 (August 24, 1979). The terms "franchise," "business opportunity venture" and "franchisor" in this Final Order shall also encompass any successor definitions of those terms in any later trade regulation rule promulgated by the Commission.
4. "UFOC format" is defined as the Uniform Franchise Offering Circular format that has been adopted by the North American Securities Administrators' Association and accepted by the Commission for use in lieu of the Franchise Rule's disclosure format.
5. "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: a) 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 b) assistance to any person 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.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that, in connection with the advertising, offering for sale, licensing, contracting, sale or other promotion, in or affecting commerce, of any product or service, defendant OLIVER, directly or through any corporation, subsidiary, division or other device, is hereby permanently enjoined from making or assisting in the making of, directly or by implication, orally or in writing, any statement or representation of material fact that is false or misleading including, including but not limited to misrepresenting that he is in any way affiliated with or acting on behalf of any governmental entity, including, but not limited to, the United States government or any state or local government agency.
IT IS FURTHER ORDERED that in connection with the advertising, offering for sale, licensing, contracting, sale or other promotion, in or affecting commerce, of any product or service, defendant OLIVER is enjoined from:
A. Using the initials "U.S.," the words "United States," or "Federal," or any word or term commonly referring to the U.S. government or any bureau, branch or agency thereof, or any state or local government agency, in his business name, Internet web page, Internet Universal Resource Locator ("URL"), promotional scripts or materials, or other advertising;
B. representations commonly identified with the U.S. government or any bureau, branch, or agency thereof, or any state or local government agency; and
C. Failing to disclose his true identity in the course of his business dealings, on the Internet, and in publicly filed documents, including, but not limited to, the use of any fictitious, false, or assumed title or name, other than his own proper name; provided however, nothing contained herein shall be construed to prohibit the use of trade names or "doing business as"/"dba" names.
IT IS FURTHER ORDERED that, in connection with the advertising, offering for sale, licensing, contracting, sale or other promotion, in or affecting commerce, of a franchise or business opportunity, the defendant is hereby permanently restrained and enjoined from violating, or assisting others to violate, any provision of the Franchise Rule as promulgated or as it may hereinafter be amended, including, but not limited to:
A. Failing to provide a complete and accurate disclosure document containing all of the information required by Sections 436.1(a)(1) - (24) of the Franchise Rule, in the manner and within the times specified by the Franchise Rule;
B. Failing to provide any prospective franchisee with an earnings claim document or other disclosures required by Sections 436.1(b) - (e) of the Franchise Rule, in the manner and within the times specified by the Franchise Rule;
C. Making any earnings claim or projection without having a reasonable basis for each claim or projection at the time the claim or projection is made, as required by Sections 436.1(b) - (e) of the Franchise Rule; and
D. Engaging in any other act or practice prohibited by Sections 436.1(f) - (h) of the Franchise Rule, or failing to fulfill any other obligation imposed by the Franchise Rule; provided, however, that defendant may choose to comply with the disclosure requirements of the Franchise Rule by fully and completely complying with the disclosure requirements set forth in the UFOC format. If the defendant chooses to comply with the Franchise Rule by using the UFOC format, defendant is hereby permanently enjoined from failing to comply with any provision of the UFOC. In the event the Franchise Rule is hereafter amended or modified, or the UFOC is amended or modified and such UFOC amendment or modification is accepted by the Commission for use in lieu of the Franchise Rule's disclosure format, defendant's compliance with the Franchise Rule as so amended or modified, or the UFOC as amended or modified and accepted by the Commission, shall not be deemed a violation of this Final Order.
IT IS FURTHER ORDERED that, in connection with the advertising, offering for sale, licensing, contracting, sale or other promotion, in or affecting commerce, of a franchise or business opportunity, the defendant is hereby permanently restrained and enjoined from making any false or misleading statement or representation of material fact about any franchise, business venture, product, or service, whether directly or by implication, orally or in writing, including, but not limited to, statements or representations regarding:
A. The income, profit, or sales volume that a purchaser or investor may or is likely to achieve;
B. The income, profit or sales volume achieved by prior purchasers or investors;
C. The length of time that it may or will take to recoup the purchase price or investment; and
D. The independence, authenticity, or identity of any references.
IT IS FURTHER ORDERED that defendant Oliver shall, within five (5) business days after receipt of this Consent Decree as entered by the Court, submit to the Commission a truthful sworn statement, in the form shown on Appendix A, that shall acknowledge receipt of this Consent Decree.
IT IS FURTHER ORDERED that for a period of five (5) years from the date of entry of this Final Order, defendant OLIVER, in connection with any business in which he is the majority owner or which he directly or indirectly manages or controls and which engages in the promotion, marketing, offering for sale, or sale of any business opportunities, franchises, or business ventures, or assists others engaged in these activities, is hereby restrained and enjoined from failing to create, and from failing to retain for a period of five (5) years following the date of such creation, unless otherwise specified:
A. Books, records, and accounts that, in reasonable detail, accurately and fairly reflect the cost of goods or services sold, revenues generated, and the disbursement of such revenues;
B. Records accurately reflecting the name, address, and telephone number of each person employed in any capacity by such business, including as an independent contractor; that person's job title or position; the date upon which the person commenced work; and the date and reason for the person's termination, if applicable. The businesses subject to this Paragraph shall retain such records for any terminated employee for a period of two (2) years following the date of termination;
C. Records containing the names, addresses, phone numbers, dollar amounts paid, quantity of items or services purchased, and description of items or services purchased, for all consumers to whom such business has sold, invoiced, or shipped any goods or services;
D. Records that reflect, for every consumer complaint or refund request, whether received directly or indirectly or through any third party:
E. Copies of all sales scripts, training materials, advertisements, or other
marketing materials utilized; provided that copies of all sales scripts, training materials, advertisements, or other marketing materials utilized shall be retained for five (5) years after the last date of dissemination of any such materials.
IT IS FURTHER ORDERED that, in order that compliance with the provisions of this Final Order may be monitored:
A. Sixty (60) days after the date of entry of this Final Order, defendant OLIVER shall provide a written report to the FTC, sworn to under penalty of perjury, setting forth in detail the manner and form in which defendant OLIVER has complied and is complying with this Final Order. This report shall include but not be limited to:
B. One year after the date of entry of this Final Order, and every year thereafter for four years, on the anniversary of the date of entry of this Final Order, defendant OLIVER shall provide a written report to the FTC which provides the following information:
C. defendant shall submit additional written reports (under oath, if requested) and produce documents on fifteen (15) days notice with respect to any conduct subject to this Final Order.
D. For the purposes of this Final Order, defendant shall, unless otherwise directed by the Commission's authorized representatives, mail all written notifications to the Commission to:
E. For the purposes of Paragraph VII of the Final Order, "employment" includes the performance of services as an employee, consultant, or independent contractor, including self-employment; and "employers" include any individual or entity for whom defendant OLIVER performs services as an employee, consultant, or independent contractor.
F. For purposes of the compliance reporting required by Paragraph VI of the Final Order, the Commission is authorized to communicate directly with defendant OLIVER.
COMMISSION'S AUTHORITY TO MONITOR COMPLIANCE
IT IS FURTHER ORDERED that the Commission is authorized to monitor defendant OLIVER's compliance with this Final Order by all lawful means, including, but not limited to, the following means:
A. The Commission is authorized, without further leave of court, to obtain discovery from any person in the manner provided by Chapter V of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 26 - 37, including the use of compulsory process pursuant to Fed. R. Civ. P. 45, for the purpose of monitoring and investigating defendant OLIVER's compliance with any provision of this Final Order;
B. The Commission is authorized to use investigators posing as consumers and suppliers to defendant OLIVER, defendant OLIVER's employees, or any other entity managed or controlled in whole or in part by defendant OLIVER, without the necessity of identification or prior notice; and
C. Nothing in this Final Order shall limit the Commission's lawful use of compulsory process, pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b-1, to investigate whether defendant OLIVER has violated any provision of this Final Order or Section 5 of the FTC Act, 15 U.S.C. § 45.
IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this matter for the purpose of enabling the parties to this Consent 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 Final Order, for the enforcement of compliance therewith, or the punishment of violations thereof.
SO ORDERED this 24th day of November, 1998.
The parties, by their respective counsel and pro se, hereby consent to the terms and conditions of the Final Order 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. Defendant further waives any right to attorney fees that may arise under said provision of law.
The parties further stipulate and agree that the entry of the foregoing Final Order shall constitute a full, complete and final settlement of this action. The parties further stipulate that this Final Order embodies all of the agreements among the parties and that the parties have not relied upon any representations or statements not included herein.
FOR THE DEFENDANT: