|WILLIAM E. KOVACIC
DAVID M. NEWMAN
IN THE UNITED STATES DISTRICT COURT
FEDERAL TRADE COMMISSION, Plaintiff,
GEORGE L. CAPELL, Defendant.
COMPLAINT FOR CIVIL PENALTIES, INJUNCTIVE AND OTHER RELIEF
Plaintiff, the Federal Trade Commission ("Commission"), for its complaint alleges that:1. Plaintiff brings this action under Sections 5(a)(1), 13(b), and 16(a) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. §§ 45(a)(1), 53(b), and 56(a), to obtain injunctive and other relief for defendant's violations of the Commission's Trade Regulation Rule Concerning the Sale of Mail or Telephone Order Merchandise (the "Mail Order Rule"), 16 C.F.R. Part 435, and injunctive relief for violations of Section 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1).
JURISDICTION AND VENUE
3. Venue in the Eastern District of Pennsylvania is proper under 15 U.S.C. § 53(b) and under 28 U.S.C. §§ 1391(b-c) and 1395(a).
DEFENDANT'S COURSE OF CONDUCT5. CPSI has sold personal computer systems, consisting of a computer and monitor, other peripherals, including a scanner, a printer and digital camera, and bundled applications software. CPSI has advertise its systems over the Internet and on infomercials, which it has run on television and cable systems throughout the United States. CPSI has typically advertised that its systems will be delivered within two to four weeks. CPSI's systems have typically been offered with one or more promotional rebates on various components of the system, which have been offered either directly by CPSI or by the manufacturers of the system components.
6. Consumers may order CPSI's computer systems over the Internet or by calling an 800-number listed in the infomercial. In either case, consumers can pay for the systems by check, by credit card, or by financing that has been arranged by CPSI pursuant to an agreement with MBNA Bank. If a consumer elected to pay by check, the order has not been placed until the check has cleared. If a consumer elected to pay by credit card, the order has been placed as soon as the credit card charge has been authorized. If a consumer elected to finance the purchase, the order has been placed as soon as MBNA Bank has accepted the financing agreement.7. On numerous occasions, CPSI has failed to ship one or more components within the stated shipping times. Prior to July, 1999, in violation of the Mail Order Rule, defendant did not provide any delay notice and did not offer consumers the option of cancelling their orders. After July, 1999, CPSI did provide a delay notice, but did not offer consumers the option of cancelling their order.
8. CPSI has advertised that the rebates that it has offered directly will be paid to consumers within eight to ten weeks after purchase. In numerous instances, however, defendant did not provide the rebates within eight to ten weeks. In many instances, consumers did not receive rebates for more than eight to ten months, and in some instances have not received rebates at all.9. CPSI has also advertised that rebates were available from the manufacturers of certain of the peripheral components of its computer systems. CPSI has not routinely provided the forms that consumers needed to apply for those rebates. Rather, CPSI has required its customers to submit a form before it provided the forms. In many cases, CPSI has taken eight to ten weeks to provide the rebate request forms to consumers, by which time the manufacturers' rebate programs have expired. As a consequence, numerous consumers have been unable to obtain the advertised manufacturers' rebates.
UNFAIR OR DECEPTIVE ACTS
11. CPSI has advertised, offered for sale, sold and distributed personal computer systems, typically including a computer, monitor, printer, scanner and related software. These computer systems have been designed to provide home personal computer users with a complete personal computer package. In addition, as an inducement to prospective customers, CPSI has advertised promotional rebates to purchasers of these computer systems. Said rebates have included both cash rebate offers from defendant and cash rebate offers from manufacturers of certain of the components included in CPSI's computer systems.12. The acts and practices of CPSI alleged in this complaint have been in or affecting commerce, as "commerce" is defined in Section 4 of the Federal Trade Commission Act.
13. CPSI has disseminated or has caused to be disseminated advertisements for its personal computer systems, which contain the following statements and statements substantially similar thereto:
VC Store Rebate Breakdown
14. Through the means described in Paragraph 13, CPSI has represented, expressly or by implication, that purchasers of its computer systems would receive cash rebates from CPSI and from manufacturers of components of CPSI's computer systems, within the times stated in the advertisements, or, where no time was stated in the advertisements, within a reasonable period of time.
15. In truth and in fact, in numerous instances, purchasers of CPSI's computer systems did not receive a cash rebate within the times stated in the advertisements, or, where no time was stated in the advertisements, within a reasonable period of time. In many instances, consumers did not receive the cash rebate for over one year. Therefore, the representation set forth in Paragraph 14 was and is false and misleading and constitutes an unfair or deceptive act or practice in violation of Section 5(a)(1) of the FTC Act, 15 U.S.C. § 45(a)(1).16. Through the means described in Paragraph 13, CPSI has represented, expressly or by implication, that consumers could reasonably obtain cash rebates from manufacturers of components of CPSI's computer systems.
17. In truth and in fact, in numerous instances, consumers could not reasonably obtain cash rebates from manufacturers of components of CPSI's computer systems because CPSI failed to provide consumers with forms necessary to claim cash rebates from manufacturers of components of defendant's computer systems in a timely manner, thereby rendering it impossible for such consumers to claim such rebates. Therefore, the representation set forth in Paragraph 14 was and is false and misleading and constitutes an unfair or deceptive act or practice in violation of Section 5(a)(1) of the FTC Act, 15 U.S.C. § 45(a)(1).
THE MAIL ORDER RULE
VIOLATIONS OF THE MAIL ORDER RULE
20. In numerous instances, after having solicited mail orders and telephone orders for merchandise and received "properly completed orders," as that term is defined in Section 435.2(d) of the Mail Order Rule, 16 C.F.R. § 435.2(d), and having been unable to ship some or all of the ordered merchandise to the buyer within the Mail Order Rule's applicable time, as set out in Section 435.1(a)(1) of the Mail Order Rule, 16 C.F.R. § 435.1(a)(1) (the "applicable time"), CPSI has violated the Mail Order Rule by:
23. At all times relevant to this Complaint, defendant George Capell has been the President of CPSI and has been a director and the majority shareholder of CPSI. He has participated directly in the creation and dissemination of certain of the sales materials described in Paragraph 5.
In addition, defendant George Capell has the authority to control the acts and practices of CPSI. At all times relevant to this Complaint, he has had or should have had knowledge that CPSI was violating Section 5 of the FTC Act, as alleged in Paragraphs 13 through 17 of this Complaint and that CPSI was violating the Mail Order Rule, as alleged in Paragraphs 19-21 of this Complaint. He has failed to exercise his authority over the acts and practices of CPSI to control the violations of Section 5 and of the Mail Order Rule alleged in this Complaint. Defendant George Capell is, therefore, liable for CPSI's violations of Section 5 and of the Mail Order Rule at any time relevant to the allegations of this Complaint.
WHEREFORE, plaintiff requests this Court, pursuant to 15 U.S.C. §§ 45(a)(1), 45(m)(1)(A), 49, 53(b) and 57b, and to the Court's own equity powers to:
FOR THE FEDERAL TRADE COMMISSION: