First Impressions, Inc.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION

Case No. 99-6941-CIV-JORDAN

FEDERAL TRADE COMMISSION, and STATE OF WISCONSIN,

Plaintiffs,

FIRST IMPRESSIONS, INC., a Delaware Corpora-tion, doing business as AIR-LAND-SEA RESERVATIONS, INC.,
AIR-LAND-SEA TRAVEL, INC., a Florida Corpor-ation,
VACATIONS ARE US, INC., a Florida Corporation,
VACATION WORLD, INC., a Florida Corporation,
JOHN MARK BUNDY, individually and as an offi-cer or director of First Impressions, Inc., d/b/a Air-Land-Sea Reservations, Inc; Air-Land-Sea Travel, Inc.; and Vacations Are Us, Inc.,
E. GENE PAIGE, individually and as an officer or director of First Impressions, Inc., d/b/a Air-Land- Sea Reservations, Inc., and
JAMES BURNS, individually and as an officer or director of First Impressions, Inc., d/b/a Air-Land-Sea Reservations, Inc.,

Defendants

ORDER FOR PERMANENT INJUNCTION AND OTHER EQUITABLE RELIEF

Plaintiffs, the Federal Trade Commission ("FTC") and State of Wisconsin ("Wisconsin"), have filed a First Amended Complaint for Injunctive and Other Equitable Relief ("Complaint") 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 First Impressions, Inc., Air-Land-Sea Travel, Inc., Vacations Are Us, Inc., Vacation World, Inc., John Mark Bundy, E. Gene Paige and James Burns with deceptive acts and practices in connection with the sale, offering for sale, or distribution of vacation or travel-related products or services. The Plaintiffs' Complaint alleges that these acts and practices violate Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and Sections 310.3(a)(1)(i), 310.3(a)(1)(ii), 310.3(a)(2)(v), and 310.3(b) of the Telemarketing Sales Rule ("Telemarketing Rule"), 16 C.F.R. §§ 310.3(a)(1)(i), 310.3(a)(1)(ii), 310.3(a)(2)(v), and 310.3(b). The Defendants have filed an Answer and Affirmative Defense denying the charges and allegations of the First Amended Complaint, that they conducted deceptive acts and practices in connection with the sale, offering for sale, or distribution of vacation or travel-related products or services, or that they violated Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and Sections 310.3(a)(1)(i), 310.3(a)(1)(ii), 310.3(a)(2)(v), and 310.3(b) of the Telemarketing Sales Rule ("Telemarketing Rule"), 16 C.F.R. §§ 310.3(a)(1)(i), 310.3(a)(1)(ii), 310.3(a)(2)(v), and 310.3(b).

The Plaintiffs and Defendants First Impressions, Inc., Air-Land-Sea Travel, Inc., Vacations Are Us, Inc., Vacation World, Inc., John Mark Bundy, and James Burns ("defendants") have consented to the entry of this Stipulated Order for Permanent Injunction and Other Equitable Relief ("Stipulated Order") without a trial or adjudication of any issue of law or fact herein. Defendant E. Gene Paige has not joined in this settlement.

NOW, THEREFORE, the Plaintiffs and Defendants, having requested the Court to enter this Stipulated Order, it is ORDERED, ADJUDGED, AND DECREED as follows:

FINDINGS

1. This is an action by the Plaintiffs instituted under Sections 13(b) and 19 of the FTC Act, 15 U.S.C. §§ 53(b) and 57b, and Sections 3, 4, and 6 of the Telemarketing Act, 15 U.S.C. §§ 6102, 6103, & 6105. The Plaintiffs have the authority to seek the relief contained herein, and the Amended Complaint states a claim upon which relief may be granted against Defendants under Sections 5, 13(b), and 19 of the FTC Act, 15 U.S.C. §§ 45, 53(b), and 57b, and the Telemarketing Rule, 16 C.F.R. Part 310.

2. This Court has jurisdiction over the subject matter of this case and all parties hereto. Venue in the Southern District of Florida is proper.

3. The alleged activities of Defendants are in or affecting commerce, as defined in Section 4 of the FTC Act, 15 U.S.C. § 44.

4. Nothing in this Stipulated Order for Permanent Injunction and Other Equitable Relief shall constitute, nor shall it be interpreted to constitute, either an admission by the Defendants or a finding by the Court that Defendants have engaged in violations of the FTC Act, the Telemarketing Act and/or the Telemarketing Rule.

5. Except as provided in Section XIV below, the parties shall each bear their own costs and attorney's fees incurred in this action and have waived all claims under the Equal Access to Justice Act, 28 U.S.C. § 2412, and all rights to seek judicial review, or otherwise to challenge the validity of this Stipulated Order.

6. Entry of this Stipulated Order is in the public interest.

ORDER

DEFINITIONS

For purposes of this order, the following definitions shall apply:

1. "Plaintiffs" means the Federal Trade Commission and the State of Wisconsin, or either of them; and

2. "Assets" means all real and personal property of any Defendant, or held for the benefit of any Defendant, including but not limited to "goods," "instruments," "equipment," "fixtures," "general intangibles," "inventory," "checks," or "notes," (as these terms are defined in the Uniform Commercial Code), lines of credit and all cash, wherever located.

3. "Telemarketing" means a plan, program, or campaign which is conducted to induce the purchase of goods or services by use of one or more telephones and which involves more than one interstate telephone call.

PROHIBITED BUSINESS ACTIVITIES

IT IS THEREFORE ORDERED that Defendants First Impressions, Inc., Air-Land-Sea Reservations, Inc., Air-Land-Sea Travel, Inc., Vacations Are Us, Inc., Vacation World, Inc., John Mark Bundy, James Burns, and their officers, agents, directors, servants, employees, salespersons, independent contractors, attorneys, corporations, subsidiaries, affiliates, successors, and assigns, all other persons or entities 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 trust, corporation, subsidiary, division, or other device, or any of them, are hereby permanently restrained and enjoined from engaging or participating in the advertising, promoting, marketing, offering for sale, sale or distribution of any vacation or travel-related products or services by means of telemarketing.

II.

CEASE AND DESIST PURSUANT TO THE FTC ACT

IT IS FURTHER ORDERED that Defendants First Impressions, Inc., Air-Land-Sea Reservations, Inc., Air-Land-Sea Travel, Inc., Vacations Are Us, Inc., Vacation World, Inc., John Mark Bundy, James Burns, and their officers, agents, directors, servants, employees, salespersons, independent contractors, attorneys, corporations, subsidiaries, affiliates, successors, and assigns, all other persons or entities 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 trust, corporation, subsidiary, division, or other device, or any of them, are hereby enjoined from:

A. Making, or assisting in the making of, expressly or by implication, any false or misleading statement or representation relating to any vacation or travel-related product or service, including, but not limited to:

1. That consumers have won or been specially selected to receive a vacation or any travel-related product or service; and/or

2. That consumers who pay the amount specified in the initial solicitation or initial sales call will receive the vacation described.

B. Making, or assisting in the making of, expressly or by implication, any false or misleading statement or representation of material fact, including, but not limited to, any representations relating to any product or service, regarding:

1. The nature, quality, value, type, location, services provided, cost of upgrading and/or any other costs relating to any goods or services; and

2. The total charges, costs, fees, port fees, taxes, service charges and/or any other amounts to be paid by consumers associated with the goods and/or services.

C. Making, or assisting in the making of, expressly or by implication, any false or misleading statement or representation of material fact, in connection with the advertising, marketing, fulfillment, offering for sale, or sale of any product or service, or the entering into any contract or any other arrangement relating to the advertising, marketing, fulfillment, offering for sale or sale of any product or service.

III.

CEASE AND DESIST PURSUANT TO TELEMARKETING RULE IT IS FURTHER ORDERED that Defendants First Impressions, Inc., Air-Land-Sea Reservations, Inc., Air-Land-Sea Travel, Inc., Vacations Are Us, Inc., Vacation World, Inc., John Mark Bundy, James Burns, and their officers, agents, directors, servants, employees, salespersons, independent contractors, attorneys, corporations, subsidiaries, affiliates, successors, and assigns, all other persons or entities 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 trust, corporation, subsidiary, division, or other device, or any of them, are hereby enjoined from violating any provision of the Telemarketing Rule, 16 C.F.R. § 310.1 et seq., including, but not limited to:

A. Violating Section 310.3(a)(1)(i) of the Telemarketing Rule, 16 C.F.R. § 310.3(a)(1)(i), including, but not limited to, by failing to disclose, in a clear and conspicuous manner, before a customer pays or authorizes payment for goods or services offered, the total costs to purchase, receive, or use, and the quantity of, any goods or services that are the subject of the sales offer, including, but not limited to, disclosing that the hotel accommodations promised may be available only for an additional charge;

B. Violating Section 310.3(a)(1)(ii) of the Telemarketing Rule, 16 C.F.R. § 310.3(a)(1)(ii), including, but not limited to, failing to disclose in a clear and conspicuous manner, before a customer pays or authorizes payment for goods or services offered, all material restrictions, limitations, or conditions to purchase, receive, or use the goods or services that are the subject of the sales offer, including, but not limited to, failing to disclose:

1. That customers are expected or will be pressured to attend a sales presentation for timeshare properties, and/or

2. The approximate length of such sales presentation;

C. Violating Section 310.3(a)(2)(v) of the Telemarketing Rule, 16 C.F. R. § 310.3(a)(2)(v), including, but not limited to, misrepresenting, expressly or by implication, any material aspect of a prize promotion, including, but not limited to:

1. The odds of being able to receive a prize,

2. The nature or value of a prize,

3. That a purchase or payment is required to win a prize or to participate in a prize promotion, and/or

4. That consumers have won or been specially selected to receive a vacation.

D. Violating Section 310.3(b) of the Telemarketing Rule, 16 C.F.R. § 310.3(b), including, but not limited to, providing substantial assistance or support to any seller or telemarketer, when Defendants know or consciously avoid knowing that the seller or telemarketer, as those terms are defined in 16 C.F.R. § 310.3(a)(2)(v), is engaged in any act or practice in violation of the Telemarketing Rule.

IV.

RIGHT TO REOPEN

IT IS FURTHER ORDERED that Plaintiffs' agreement to this Stipulated Order is expressly premised upon the financial condition of each Defendant, as represented in their financial statements and amendments thereto, which contain material information upon which the Plaintiffs relied in negotiating and agreeing upon this Stipulated Order.

If, upon motion of the Plaintiffs or either of them, the Court finds that any Defendant failed to disclose any material asset, or materially misrepresented the value of any asset, or made any other material misrepresentation in or omission from the financial statements provided to Plaintiffs, the Plaintiffs or either of them may either (1) request that the judgment herein be reopened against such Defendant for the purpose of requiring monetary consumer redress or obtaining other equitable relief up to the total amount of consumer injury in this matter, or (2) seek to obtain other equitable relief. If the Court finds that any Defendant failed to disclose any material asset, materially misrepresented the value of any asset, or made any other material misrepresentation in or omission from the above-referenced financial statements and information, the Court shall Order the Defendant with the undisclosed or misrepresented asset to turn that asset, or its exact liquid value, to the Commission.

Provided, however, that in all other respects this judgment shall remain in full force and effect, unless otherwise ordered by the Court.

CUSTOMER LISTS

IT IS FURTHER ORDERED that Defendants are hereby permanently restrained and enjoined from selling, renting, leasing, transferring, or otherwise disclosing the name, address, telephone number, social security number, or other identifying information of any person who paid any money to Defendants, who was solicited to pay money to Defendants, or whose identifying information was obtained for the purpose of soliciting them to pay money to Defendants, at any time prior to the date this Stipulated Order is entered, in connection with the sale of the products or services referenced in the Complaint. Provided, however, that Defendants may disclose such identifying information to a law enforcement agency or as required by any law, regulation, or court order.

VI.

MONITORING COMPLIANCE OF SALES PERSONNEL

IT IS FURTHER ORDERED that, in connection with any business operated by Defendants, or where Defendant John Mark Bundy, or James Burns is the majority owner of the business or directly or indirectly control any significant aspect of the business, and where the business is engaged in telemarketing or the sale of vacation or travel-related products or services, or assists others engaged in these activities, Defendants are hereby permanently restrained and enjoined from:

A. Failing to take reasonable steps sufficient to monitor and ensure that all employees and independent contractors engaged in sales or other customer service functions comply with Sections I, II and III of this Stipulated Order. Such steps shall include adequate monitoring of sales presentations or other calls with customers, and shall also include, at a minimum, the following: (1) listening to the oral representations made by persons engaged in sales or other customer service functions; (2) establishing a procedure for receiving and responding to consumer complaints; and (3) ascertaining the number and nature of consumer complaints regarding transactions in which each employee or independent contractor is involved; provided that this Section does not authorize or require the Defendants to take any steps that violate any federal, state, or local laws;

B. Failing promptly to investigate fully any consumer complaint received by any business to which this Section applies; and

C. Failing to terminate any employee or independent contractor whom Defendants determine is not complying with this Stipulated Order.

VII.

RECEIVER

IT IS FURTHER ORDERED that: (1) Defendants will pay $3,500 to the Receiver no later than March 29, 2000; (2) no later than May 1, 2000, Defendants will pay an additional $11,500 to a trust account to be maintained by their attorney, Lawrence D. Winson, to secure the final payment to the Receiver; and (3) Defendants will make a final payment of $11,500 to the Receiver within five (5) days of the entry of this Order. Upon final payment, the appointment of Hilarie Bass as Receiver contained in Section IX of the Magistrate's Report and Recommendation dated July 27, 1999, and as adopted and subsequently extended and modified by order of this Court, will be hereby terminated and the provisions of said Preliminary Injunction related to the appointment of the Receiver contained in Section IX thereof shall be dissolved. The Receiver shall, within ten (10) days of entry of this Order, file a final report.

VIII.

ACKNOWLEDGMENT OF RECEIPT OF ORDER BY DEFENDANTS

IT IS FURTHER ORDERED that, within five (5) business days after receipt by Defendants of this Stipulated Order as entered by the Court, Defendants shall submit to the Plaintiffs a truthful sworn statement, in the form shown on Attachment A, that shall acknowledge receipt of this Stipulated Order.

IX.

DISTRIBUTION OF ORDER BY DEFENDANTS

IT IS FURTHER ORDERED that, for a period of three (3) years from the date of entry of this Stipulated Order, Defendants shall:

A. Provide a copy of this Stipulated Order to, and obtain a signed and dated acknowledgment of receipt from each officer or director, each individual serving in a management capacity, all personnel involved in responding to consumer complaints or inquiries, and all sales personnel, whether designated as employees, consultants, independent contractors or otherwise, immediately upon employing or retaining any such persons, for any business where Defendants John Mark Bundy, or James Burns are the majority owner of the business or directly or indirectly control any significant aspect of the business, and where the business is engaged in telemarketing or the sale of vacation or travel-related products or services, or assists others engaged in these activities;

B. Maintain for a period of three (3) years after creation, and upon reasonable notice, make available to representatives of the Plaintiffs, the original signed and dated acknowledgments of the receipt of copies of this Stipulated Order, as required in Subsection (A).

RECORD KEEPING PROVISIONS

IT IS FURTHER ORDERED that Defendants, in connection with any business where Defendant John Mark Bundy, or James Burns are the majority owner of the business or directly or indirectly control any significant aspect of the business, and where the business is engaged in telemarketing or the sale of vacation or travel-related products or services, or assists others engaged in these activities, are hereby restrained and enjoined from failing to create, and from failing to retain for a period of three (3) 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, products 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 Section 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, products or services;

D. Records that reflect, for every consumer complaint or refund request, whether received directly or indirectly or through any third party:

(1) The consumer's name, address, telephone number and the dollar amount paid by the consumer;

(2) The written complaint or refund request, if any, and the date of the complaint or refund request;

(3) The basis of the complaint, including the name of any salesperson complained against, and the nature and result of any investigation conducted concerning any complaint;

(4) Each response and the date of the response;

(5) Any final resolution and the date of the resolution; and

(6) In the event of a denial of a refund request, the reason for the denial.

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 (3) years after the last date of dissemination of any such materials.

XI.

COMPLIANCE REPORTING BY DEFENDANTS

IT IS FURTHER ORDERED that, in order that compliance with the provisions of this Stipulated Order may be monitored:

A. For a period of three (3) years from the date of entry of this Stipulated Order, Defendants shall notify the Plaintiffs of the following:

(1) Any changes in Defendants' residence, mailing addresses, and telephone numbers, within ten (10) days of the date of such change;

(2) Any changes in Defendants' employment status (including self-employment) within ten (10) days of such change. Such notice shall include the name and address of each business that such Defendant is affiliated with or employed by, a statement of the nature of the business, and a statement of such Defendants' duties and responsibilities in connection with the business or employment; and

(3) Any proposed change in the structure of any corporate Defendant, or of any business entity engaged in the sale, offering for sale, or distribution of vacation or travel-related products or services, owned or controlled by Defendant John Mark Bundy, or James Burns, such as creation, incorporation, dissolution, assignment, sale, merger, creation of subsidiaries, dissolution of subsidiaries, proposed filing of a bankruptcy petition, change in the corporate name or address, or any other change that may affect compliance obligations arising out of this Stipulated Order, thirty (30) days prior to the effective date of any proposed change; provided, however, that, with respect to any proposed change in the corporations about which Defendants learn less than thirty (30) days prior to the date such action is to take place, Defendants shall notify the Plaintiffs as soon as is practicable after learning of such proposed change;

B. One hundred eighty (180) days after the date of entry of this Stipulated Order, Defendants shall provide a written report to the Plaintiffs, sworn to under penalty of perjury, setting forth in detail the manner and form in which the Defendants have complied and are complying with this Stipulated Order. This report shall include but not be limited to:

(1) Defendants John Mark Bundy and James Burns's current residence addresses and telephone numbers;

(2) Defendants John Mark Bundy and James Burns's current employment, business addresses and telephone numbers, a description of the business activities of each such employer, and Defendant's titles and responsibilities for each employer;

(3) A copy of each acknowledgment of receipt of this Stipulated Order obtained by Defendants pursuant to Section X; and

(4) A statement describing the manner in which Defendants have complied and are complying with Sections I and II of this Stipulated Order;

C. Upon written request by a representative of the Plaintiffs, Defendants 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 Stipulated Order;

D. For the purposes of this Stipulated Order, Defendants shall, unless otherwise directed by the FTC's authorized representatives, mail all written notifications to the FTC to:

Regional Director
Midwest Regional Office
55 E. Monroe St., Suite 1860
Chicago, Illinois 60603

Re: FTC v. First Impressions, Inc.;
and shall mail all written notifications to Wisconsin to:

James D. Jeffries, Esq.
Assistant Attorney General
Wisconsin Department of Justice
123 W. Washington Ave.
Madison, WI 53702

E. For the purposes of this Section, "employment" includes the performance of services as an employee, consultant, or independent contractor; and "employers" include any individual or entity for whom Defendants John Mark Bundy, or James Burns performs services as an employee, consultant, or independent contractor; and

F. For purposes of the compliance reporting required by this Section, Plaintiffs are authorized to communicate directly with Defendants John Mark Bundy or James Burns.

XII.

PLAINTIFFS' AUTHORITY TO MONITOR COMPLIANCE

IT IS FURTHER ORDERED that the Plaintiffs are authorized to monitor Defendants compliance with this Stipulated Order by all lawful means, including but not limited to the following means:

A. The Plaintiffs are 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 Defendants' compliance with any provision of this Stipulated Order;

B. The Plaintiffs are authorized to use representatives posing as consumers and suppliers to Defendants, Defendants' employees, or any other entity managed or controlled in whole or in part by Defendants John Mark Bundy or James Burns, without the necessity of identification or prior notice;

C. Nothing in this Stipulated Order shall limit the FTC'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 Defendants have violated any provision of this Stipulated Order or Section 5 of the FTC Act, 15 U.S.C. § 45; and

D. Nothing in this Stipulated Order shall limit Wisconsin's lawful use of compulsory process to investigate whether Defendants have violated any provision of this Stipulated Order or Wisconsin law.

XIII.

ACCESS TO BUSINESS PREMISES

IT IS FURTHER ORDERED that, for a period of five (5) years from the date of entry of this Stipulated Order, for the purpose of further determining compliance with this Stipulated Order, Defendants shall permit representatives of the Plaintiffs, within three (3) business days of receipt of written notice from the Plaintiffs:

A. Access during normal business hours to any office, or facility storing documents, of any business where Defendants John Mark Bundy, or James Burns are the majority owner of the business or directly or indirectly controls any significant aspect of the business, and where the business is engaged in telemarketing or the sale of vacation or travel-related products or services, or assists others engaged in these activities. In providing such access, Defendants shall permit representatives of the Plaintiffs to inspect and copy all documents relevant to any matter contained in this Stipulated Order; and shall permit Plaintiffs' representatives to remove documents relevant to any matter contained in this Stipulated Order for a period not to exceed five (5) business days so that the documents may be inspected, inventoried, and copied; and

B. To interview the officers, directors, and employees, including all personnel involved in responding to consumer complaints or inquiries, and all sales personnel, whether designated as employees, consultants, independent contractors or otherwise, of any business to which Subsection (A) applies, concerning matters relating to compliance with the terms of this Stipulated Order. The person interviewed may have counsel present.

XIV.

ATTORNEYS' FEES AND INVESTIGATIVE COSTS

IT IS FURTHER ORDERED that no later than May 1, 2000, Defendants will pay $7,500 to a trust account maintained by their attorney, Lawrence D. Winson, to secure final payment to Wisconsin for investigative costs and attorneys' fees, and within five (5) days of the entry of this Order, Defendants shall pay the sum of $7,500 to Wisconsin.

XV.

RETENTION OF JURISDICTION

IT IS FURTHER ORDERED that this Court retains jurisdiction of this matter for all purposes.

FEDERAL TRADE COMMISSION

______________________________
DAVID O'TOOLE

Attorney for Plaintiff Federal Trade Commission

Dated:

STATE OF WISCONSIN:

______________________________
JAMES D. JEFFRIES
Assistant Attorney General

Dated:

CORPORATE DEFENDANTS:

FIRST IMPRESSIONS, INC.

By: _________________________________
John Mark Bundy, President

Dated:

AIR-LAND-SEA TRAVEL, INC.

By: _________________________________
John Mark Bundy, President

Dated:

VACATIONS ARE US, INC.

By: _________________________________
John Mark Bundy, President

Dated:

VACATION WORLD, INC.

By: ___________________________________
John Mark Bundy, President

Dated:

INDIVIDUAL DEFENDANTS:

_______________________________________
JOHN MARK BUNDY
Dated:

_______________________________________
JAMES BURNS
Dated:

_______________________________________
LAWRENCE D. WINSON
Attorney for Defendants
Dated: