UNITED STATES DISTRICT COURT
FEDERAL TRADE COMMISSION,
CIVIL ACTION NO. 00-11341-RGS
STIPULATED CONSENT AGREEMENT AND FINAL ORDER
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 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 are true.
7. Entry of the Final Order is in the public interest.
For purposes of this Order:
I. PROHIBITION AGAINST MISREPRESENTATIONS
IT IS HEREBY ORDERED that Defendants and their 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. REQUIREMENT THAT DEFENDANTS DELETE PERSONAL CUSTOMER INFORMATION
IT IS FURTHER ORDERED that, absent approval by the Bankruptcy Court on or before July 31, 2001, of the sale of the Customer Information to a Qualified Buyer or of a reorganization plan, Defendants and their officers, agents, servants, and employees shall, on or before August 31, 2001, delete or destroy all Customer Information in their possession, custody or control, and provide written confirmation to the FTC, sworn to under penalty of perjury, that all such Customer Information has been deleted or destroyed.
III. REQUIREMENT THAT DEFENDANTS COMPLY WITH THE CHILDREN'S ONLINE PRIVACY PROTECTION ACT
IT IS HEREBY ORDERED that Defendants and their 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 the Children's Online Privacy Protection Act of 1998, 15 U.S.C. §§ 6501 et seq. and its implementing regulations, and are hereby required to delete or destroy any and all information collected in violation of 16 C.F.R. Part 312 et seq. within ten (10) days of the entry of this Order.
IV. FTC'S RIGHT TO FILE ACTION
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 declaration sworn to under penalty of perjury provided by Toysmart and attached hereto as Exhibit B, stating that after diligent investigation it is not aware of any disclosures of customer information to third parties or other material violations of the Toysmart Privacy Statement prior to May 22, 2000, as the Commission relied upon this material information in negotiating and agreeing to the terms of this Order.
IT IS FURTHER ORDERED that nothing shall preclude the Commission from filing an action against Toysmart in this Court within the next one (1) year from the date of this Order, should the Commission subsequently obtain evidence that Toysmart in the above-referenced declaration failed to disclose a material violation of the Toysmart Privacy Statement, or made any other material misrepresentation or omission.
V. DOCUMENT RETENTION
IT IS FURTHER ORDERED that Defendants shall maintain for at least one (1) year from the date of service of this Order and, upon written request by FTC employees, make available to the FTC for inspection and copying:
VI. NOTICE TO RELATED PERSONS AND ENTITIES
IT IS FURTHER ORDERED that, for a period of one (1) year from the date of entry of this Order, Defendants shall:
VII. COMPLIANCE REPORTING AND MONITORING
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
Attorneys for Plaintiff
FOR DEFENDANT TOYSMART.COM, LLC:
Dated: ________, 2000
HAROLD B. MURPHY
Attorneys for Defendant
Dated: ________, 2000
DAVID N. LORD
FOR DEFENDANT TOYSMART.COM, INC.:
Dated: _______ , 2000
DAVID N. LORD
IT IS SO ORDERED.
Dated: _______, 2000
Honorable Richard G. Stearns