UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE

FEDERAL TRADE COMMISSION,
Plaintiff,

v.

PACIFIC RIM POOLS INTERNATIONAL, et al.,
Defendants.

Civil No. C97-1748R

ORDER FOR PERMANENT INJUNCTION AND FINAL JUDGMENT (PROPOSED)

Plaintiff, the Federal Trade Commission ("FTC" or "Commission"), has filed a complaint for a permanent injunction and other relief pursuant to Section 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., naming Daryl Dyck as a defendant and alleging violations of the Telemarketing Sales Rule, 16 C.F.R. Part 310 ("the Rule").

Defendant Dyck and the Commission have agreed to entry of this Order by this Court in order to resolve all matters in dispute between them in this action. This defendant has consented to the entry of this Order without trial or adjudication of any issue of law or fact herein, and this Decree shall not constitute an admission of liability by defendant nor constitute evidence of liability against defendant in any matter relating to the facts alleged in the Commission’s Complaint. NOW, THEREFORE, Daryl Dyck and the Commission, having requested the Court to enter this Order, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows:

FINDINGS

A. This Court has jurisdiction over the subject matter of this action and the parties consenting hereto.

 

B. The complaint states a claim upon which relief may be granted against Daryl Dyck under Sections 13(b) and 19 of the FTC Act, 15 U.S.C. §§ 53(b) and 57b, the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. § 6101 et seq., and the Telemarketing Sales Rule ("the Rule") 16 C.F.R. Part 310.

 

C. Entry of this Order is in the public interest.

 

D. Daryl Dyck has waived all rights to seek judicial review or otherwise challenge or contest the validity of this Order.

 

E. This Order does not constitute and shall not be interpreted to constitute either an admission by Daryl Dyck or a finding by the Court that he has engaged in violations of the FTC Act or the Telemarketing Sales Rule, 16 C.F.R. Part 310.

DEFINITIONS

For the purpose of this Order, the following definitions shall apply:

A. “Person” means a natural person, organization, or other legal entity, including a corporation, partnership, proprietorship, association, cooperative, government, or governmental subdivision or agency, or any other group or combination acting as an entity; and

 

B. "Telemarketing" means a plan, program, or campaign that is conducted to induce the purchase of goods or services by use of one or more telephones.

I. CONDUCT PROHIBITIONS

IT IS THEREFORE ORDERED that defendant is hereby permanently restrained and enjoined from:

A. Promoting, offering for sale, selling, or participating, directly or through an agent, in the sale of tickets, chances, interests, or registrations in any lottery to U.S. residents;

 

B. Promoting, offering for sale, selling, or participating, directly or through an agent, in the sale of any product or service to U.S. residents in a manner that violates the Telemarketing Sales Rule, including but not limited to:

1. failing to disclose in a clear and conspicuous manner:

a. the total cost to purchase, receive, or use goods or services that are the subject of the sales offer;

b. all material restrictions, limitations, or conditions to purchase, receive, or use the goods or services that are the subject of the sales offer;

c. if the seller has a policy of not making refunds, cancellations, or exchanges, or repurchases, a statement informing the customer that this is the seller’s policy; or if the seller or telemarketer makes a representation about a refund, cancellation, exchange, or repurchase policy, a statement of all material terms and conditions of such policy;

d. in any prize promotion, the odds of being able to receive the prize, and if the odds are not calculable in advance, the factors used in calculating the odds; that no purchase or payment is required to win a prize or to participate in a prize promotion; and the no purchase/no payment method of participating in the prize promotion; and

e. all material costs or conditions to receive or redeem a prize that is the subject of a prize promotion.

2. misrepresenting, directly or by implication, any of the following:

a. the total cost to purchase, receive, or use, and the quantity of, any goods or services that are the subject of a sales offer;

b. any material restriction, limitation, or condition to purchase, receive, or use goods or services that are the subject of a sales offer;

c. any material aspect of the performance, efficacy, nature, or central characteristics of goods or services that are the subject of a sales offer;

d. any material aspect of the nature or terms of the seller’s refund, cancellation, exchange, or repurchase policies; and

e. any material aspect of a prize promotion including, but not limited to, the odds of being able to win a prize, the nature or value of a prize, or that a purchase or payment is required to win a prize or participate in a prize promotion.

C. Making a false or misleading statement to induce a person to pay for goods or services.

 

D. Processing credit card sales drafts in a manner that violates Section 310.3(c) of the Telemarketing Sales Rule, 16 C.F.R. 310.3(c).

II. RECORD-KEEPING PROVISIONS

IT IS FURTHER ORDERED that:

A. For a period of three (3) years from the date of entry of this Order, defendant, in connection with any business in which he is the majority owner of the business or directly or indirectly manages or controls the business, and where the business is engaged in telemarketing, is hereby restrained and enjoined from failing to create and retain records sufficient to demonstrate his compliance with this Order, including but not limited to, records of every consumer complaint and refund request, whether received directly or indirectly through any third party, and copies of all sales scripts, training materials, advertisements, and other marketing materials used.

 

B. For purposes of determining or securing compliance with this Order, defendant shall permit, for a period of three (3) years from the date of entry of this Order, and upon reasonable written notice, representatives of the Federal Trade Commission to access, inspect, and/or copy all such records.

III. COMPLIANCE REPORTING BY DEFENDANT

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

A. Defendant shall notify the Commission in writing of any employment or affiliation with any new business that is related to the telemarketing of any product or service to U.S. residents, including the new business' name and address, a statement of the nature of the business, and a statement of defendant’s duties and responsibilities in connection with the business;

 

B. Within one hundredeighty (180) days after the date of entry of this Order, defendants shall file a report, in writing, setting forth in detail the manner and form in which he has complied with this Order; and

 

C. For purposes of this Order all notices and reports required of defendant shall be made to the following address:

Regional Director
Federal Trade Commission
915 Second Avenue, Suite 2896
Seattle, Washington 98174

IV. ACKNOWLEDGMENT OF RECEIPT OF ORDER

IT IS FURTHER ORDERED that, within five (5) business days after receipt by defendant of this Order as entered by the Court, defendant shall submit to the Commission a truthful sworn statement, in the form shown on Appendix A, that shall acknowledge receipt of this Permanent Injunction and Final Judgment.

V. COMPLIANCE MONITORING BY FTC

IT IS FURTHER ORDERED that the Commission is authorized to monitor defendant’s compliance with this Order by all lawful means available, including but not limited to the use of compulsory process and the use of investigators posing as consumers or suppliers.

VI. RETENTION OF JURISDICTION

IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this matter for the purpose of enabling either of the parties to this Order to apply to the Court at any time for such further orders or directives as may be necessary or appropriate for the interpretation or modification of this Order, for the enforcement of compliance therewith, or for the punishment of violations thereof.

SO ORDERED, this _____ day of , 1998.

______________________________
United States District Judge

The parties hereby consent to the terms and conditions set forth above and consent to entry of this Order without further notice to the parties. Defendants waive any rights that may arise under the Equal Access to Justice Act, 28 U.S.C. § 2412.

FOR THE DEFENDANT:

DARYL DYCK

FOR THE PLAINTIFF:

_______________________________
ELEANOR DURHAM
Attorney for Plaintiff