UNITED STATES DISTRICT COURT
Civil Action No. 99-WM-783
FEDERAL TRADE COMMISSION, Plaintiff,
STIPULATED CONSENT AGREEMENT AND FINAL ORDER
Plaintiff, the Federal Trade Commission ("Commission"), filed its complaint for a permanent injunction and other relief in this matter on April 21, 1999, pursuant to Section 13(b) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 53(b), against defendants James J. Rapp and Regana L. Rapp, individually and doing business as Touch Tone Information, Inc. The Complaint alleges that defendants violated Section 5 of the FTC Act, 15 U.S.C. § 45(a), by obtaining the private financial information of consumers through misleading and false statements, and by disclosing or selling such information without consumers' knowledge or consent.
The Commission and the defendants, by and through their counsel, have agreed to settlement of this action upon the following terms and conditions, without adjudication of any issues of fact or law.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows:
1. This Court has jurisdiction over the subject matter of this case and has jurisdiction over defendants. Venue in this district is proper.
2. The Commission has the authority under Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), to seek the relief it has requested.
3. The Complaint states a claim upon which injunctive relief may be granted against the defendants under Sections 5(a) and 13(b) of the FTC Act, 15 U.S.C. §§ 45(a) and 53(b).
4. Defendants' activities as alleged in the Commission's Complaint are in or affecting commerce, as defined in 15 U.S.C. § 44.
5. Defendants waive all rights to seek judicial review or otherwise challenge or contest the validity of this Order. Defendants also waive any claim that they may have held under the Equal Access to Justice Act, 28 U.S.C. § 2412, amended by Pub. L. 104-121, 110 Stat. 847, 863-64 (1996), concerning prosecution of this action to the date of this Order.
6. This agreement is for settlement purposes only and does not constitute an admission by defendants that the law has been violated as alleged in the Complaint or that the facts as alleged in the Complaint, other than the jurisdictional facts, are true.
7. Except as herein provided, 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. Entry of the Final Order is in the public interest.
For purposes of this Order:
I. PROHIBITED BUSINESS PRACTICES
IT IS THEREFORE ORDERED that defendants and their successors, assigns, officers, agents, servants, employees, and those persons in active concert or participation with them who receive actual notice of this Order by personal service or otherwise, whether acting directly or through any corporation, subsidiary, division, or other device, are hereby restrained and enjoined from violating Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), by:
II. SUSPENDED JUDGMENT
IT IS FURTHER ORDERED that judgment is hereby entered against defendants James J. Rapp and Regana L. Rapp, jointly and severally, in the amount of TWO HUNDRED THOUSAND DOLLARS ($200,000.00); provided, however, that this judgment shall be suspended until further order of the Court, and provided further that this judgment shall be subject to the conditions set forth in Section III of this Order.
III. RIGHT TO REOPEN
IT IS FURTHER ORDERED that the Commission's agreement to and the Court's approval of this Order is expressly premised upon the truthfulness, accuracy, and completeness of the financial statements and information provided by defendants James J. Rapp and Regana L. Rapp to counsel for the Commission on or about December 6, 1999, which contain material information relied upon by the Commission in negotiating and agreeing to the terms of this Order.
IT IS FURTHER ORDERED that if the Commission should have evidence that the above-referenced financial statements and information failed to disclose any material asset the value of which exceeds $1,000, materially misrepresented the value of any asset, or made any other material misrepresentation or omission, the Commission may move that the Court reopen this Order for the sole purpose of allowing the Commission to modify the monetary liability of the defendants. If the Court finds that any defendant(s) failed to disclose any material asset, materially misrepresented the value of any asset, or made any other material misrepresentation or omission in the above-referenced financial statements and information, the Court shall reinstate the judgment against such defendant(s), in favor of the Commission, in the amount of TWO HUNDRED THOUSAND DOLLARS ($200,000.00), and the entire amount of the judgment shall become immediately due and payable. Should this judgment be modified as to the monetary liability of the defendants, this Order, in all other respects, shall remain in full force. Any proceedings instituted under this Section shall be in addition to and not in lieu of any other proceedings the Commission may initiate to enforce this Order. Solely for the purposes of reopening or enforcing this Section, defendants waive any right to contest any of the allegations set forth in the Complaint filed in this matter.
IV. DOCUMENT RETENTION
IT IS FURTHER ORDERED that defendants, and their successors and assigns, shall maintain for at least five (5) years from the date of service of this Order and, upon written request by FTC employees, make available to the FTC for inspection and copying:
V. NOTICE TO RELATED PERSONS AND ENTITIES
IT IS FURTHER ORDERED that, for a period of five (5) years from the date of entry of this Order, defendants, and their successors and assigns, shall:
VI. PRIVACY NOTICE
IT IS FURTHER ORDERED that defendants, directly or through any corporation, subsidiary, division, or other device, in connection with the advertising, promotion, or offering of any Internet service or Web site, shall provide clear and prominent notice to consumers on the Web site of their practices with regard to its collection of personal identifying information through the Web site and the use of such information. Such notice shall include, but is not limited to, disclosure of:
VII. COMPLIANCE REPORTING
IT IS FURTHER ORDERED that, in order that compliance with the provisions of this Order may be monitored:
VIII. RETENTION OF JURISDICTION
IT IS FURTHER ORDERED that the Court retains jurisdiction of this matter for all purposes, including the construction, modification, and enforcement of this Order.
STIPULATED AND AGREED TO BY:
FOR THE PLAINTIFF:
Dated: _____ __, 2000
FOR THE DEFENDANTS:
Dated: ______ __, 2000
STEPHEN C. LECKAR
Dated: ______ __, 2000
JAMES J. RAPP
Dated: ______ __, 2000
REGANA L. RAPP
IT IS SO ORDERED.
Dated: _____ __, 2000