|DEBRA A. VALENTINE
PAUL H. BYUS, Defendant, Pro Se
WAYNE SILVA CA BAR #96694
UNITED STATES DISTRICT COURT
FEDERAL TRADE COMMISSION,
SELKET PRECIOUS METALS INC., and PAUL H. BYUS,
STIPULATED FINAL ORDER FOR PERMANENT INJUNCTION
Plaintiff, the Federal Trade Commission ("FTC" or "Commission"), filed a Complaint for permanent injunction and other relief against Selket Precious Metals Inc., and Paul H. Byus, pursuant to Section 13(b) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 53(b).
The Commission and defendants have stipulated to the entry of the following Stipulated Final Order for Permanent Injunction in settlement of the Commission's complaint against defendants. The Court, being advised in the premises, finds:
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 Selket Precious Metals, Inc. ("Selket"), and Paul Byus ("Byus") under Sections 5(a) and 13(b) of the Federal Trade Commission Act, 15 U.S.C. §§ 45(a) and 53(b);
3. Venue is proper as to all parties in the Eastern District of California;
4. The activities of Selket and Byus are in or affecting commerce, as defined in the FTC Act, 15 U.S.C. § 44;
5. Defendant does not admit the Commission's allegations and nothing herein shall be construed as an admission or finding of liability or misrepresentation by defendant.
6. Selket and Byus have waived all rights that may arise under the Equal Access to Justice Act, 28 U.S.C. § 2412, amended by Pub. L. 104-121, 110 Stat. 847, 863-64 (1996);
7. This action and the relief awarded herein are in addition to, and not in lieu of, other remedies as may be provided by law;
8. Each party shall bear its own costs and attorneys' fees;
9. Entry of this Order is in the public interest; and
10. Pursuant to Federal Rule of Civil Procedure 65(d), the provisions of this Order are binding upon defendants, and their officers, agents, servants, employees and attorneys, and all other persons or entities in active concert or participation with them, who receive actual notice of this Order by personal service or otherwise.
11. "Defendants" means Selket and Byus, their successors and assigns, and their officers, agents, servants and employees, and all persons in active concert or participation with any one or more of them who receive actual notice of this Stipulated Final Judgment ("Judgment") by personal service or otherwise.
12. "Investment" or "Investment offering" shall mean any service, product or interest, including any partnership, interest in any partnership, or other beneficial interest, tangible or intangible, that in any way is (1) offered for sale, traded, or sold, to be held, wholly or in part, for purposes of economic benefit, profit, or income, or (2) offered for sale, traded, or sold, based on representations, wholly or in part, express or implied, about past or future income, appreciation, or resale value.
13. "Employment" shall mean any affiliation with any business, non-profit, or government entity, including the performance of services as an officer, owner, manager, supervisor, employee, consultant, or independent contractor; and "Employer" shall mean any and all individuals or entities for whom any defendant performs services as an employee, consultant, or independent contractor.
14. A requirement that any defendant "notify the Commission" shall mean that the defendant shall send the necessary information via first-class mail, costs prepaid, to the Associate Director for Enforcement, Federal Trade Commission, 600 Pennsylvania Ave., N.W., Washington, D.C. 20580. Attn: FTC v. Selket Precious Metal Inc and Paul H. Byus, (E.D. CA).
15. The term "including" in this Order shall mean "without limitation."
16. The terms "and" and "or" in this Order shall be construed conjunctively or disjunctively as necessary, to make the applicable phrase or sentence inclusive rather than exclusive.
I. PROHIBITED BUSINESS ACTIVITIES
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that
defendants and their agents, servants, employees, attorneys, successors, assigns, and other entities or persons directly or indirectly under their control, and all persons or entities in active concert or participation with them who receive actual notice of this Order by personal service, facsimile or otherwise, in connection with the advertising, promotion, offering for sale, or sale of any investment opportunity are hereby permanently restrained and enjoined from:
II. ALLEGATIONS IN THE COMPLAINT
IT IS FURTHER ORDERED THAT the facts as alleged in the Complaint filed with this Judgment shall be taken as true solely for the purpose of any subsequent litigation filed by the FTC to enforce its rights under this Judgment.
III. ORDER DISTRIBUTION
IT IS FURTHER ORDERED THAT, for a period of 3 years from the date of entry of this Judgment, defendants shall:
IV. RECORD KEEPING
IT IS FURTHER ORDERED THAT for a period of 3 years from the date of entry of this Judgment, Selket and Byus shall create and maintain:
V. ACCESS TO BUSINESS PREMISES
IT IS FURTHER ORDERED THAT, for a period of 3 years from the date of entry of this Judgment, for the purpose of further determining compliance with this Judgment, defendants shall permit representatives of the Commission, within 5 business days of receipt of written notice from the Commission:
Provided that, upon application of the Commission and for good cause shown, the Court may enter an ex parte order granting immediate access to defendants' business premises for the purposes of inspecting and copying all documents relevant to any matter contained in this Judgment.
VI. MONITORING OF DEFENDANT BYUS
IT IS FURTHER ORDERED THAT for a period of 3 years from the date of entry of this Judgment, Defendant Byus shall promptly inform the Commission by written notification at least 30 days in advance, or in the case of involuntary termination of employment, within 30 days of such termination, of:
VII. NOTIFICATION OF CHANGES IN BUSINESS STRUCTURE
IT IS FURTHER ORDERED THAT Defendant Selket, its successors and assigns, shall notify the Commission, at least 30 days prior to any change in the business of Selket including, but not limited to, merger, incorporation, dissolution, assignment, sale resulting in the emergence of a successor corporation, the creation or dissolution of a subsidiary or parent, or any other change that may affect defendants' obligations under this Judgment.
VIII. COMPLIANCE REPORTING BY DEFENDANT
IT IS FURTHER ORDERED THAT 180 days after the date of entry of this Order, Defendant Byus shall provide a written report to the FTC, sworn to under penalty of perjury, setting forth in detail the manner and form in which each defendant has complied and is complying with this Judgment. This report shall include but not be limited to:
Upon written request by a representative of the Commission, defendants shall submit additional written reports (under oath, if requested) and produce documents on 15 days' notice with respect to any conduct subject to this Judgment.
For purposes of the compliance reporting required by this Paragraph, the Commission is authorized to communicate in writing directly with Byus.
IX. COMMISSION'S AUTHORITY TO MONITOR COMPLIANCE
IT IS FURTHER ORDERED THAT the Commission is authorized to monitor defendants' compliance with this Judgment by all lawful means, including but not limited to the following means:
X. ACKNOWLEDGMENT OF RECEIPT OF ORDER BY DEFENDANTS
IT IS FURTHER ORDERED THAT, within 5 business days after receipt by defendants of this Order as entered by the Court, Defendant Byus shall submit to the Commission a truthful sworn statement, in the form shown on Appendix A, that shall acknowledge receipt of this Judgment on behalf of himself and Selket.
XI. CONTINUING JURISDICTION
IT IS HEREBY ORDERED THAT this Court shall retain jurisdiction of this matter for purposes of construction, modification, and enforcement of this Judgment.
The parties hereby consent to the terms and conditions set forth above and consent to entry of the Final Judgment without further notice to the parties. Each party to this Judgment hereby agrees to bear its own costs and attorneys fees incurred in connection with this action.
IT IS SO ORDERED, this ______ day of __________, 1999 in ______________, California.
UNITED STATES DISTRICT COURT
FEDERAL TRADE COMMISSION, Plaintiff,
SELKET PRECIOUS METALS, INC, and PAUL H. BYUS Defendants.
Civil Action No.
Paul H. Byus, being duly sworn, hereby states and affirms as follows:
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on __________________, at __________________.
State of ____________________, City of ____________________
Subscribed and sworn to before me this _____ day of _________, 199___.