Stipulated Final Judgment and Order for Permanent Injunction as to Defendants Susan Perkins

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

FEDERAL TRADE COMMISSION,

Plaintiff,

RAYMOND URSO, et al

Defendants.

Case No. 97-2680
CIV-Ungaro-Benages
Magistrate Judge Bandstra

Stipulated Final Judgment and Order for Permanent Injunction as to Defendants Susan Perkins

On August 19, 1997, plaintiff, the Federal Trade Commission ("FTC" or "Commission"), filed its complaint for a permanent injunction and other relief in this matter, pursuant to Sections 13(b) and 19(a) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. §§ 53(b) and 57b(a), charging defendant Susan Perkins ("Perkins") with violations of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). On August 19, 1997, this Court issued an ex parte Temporary Restraining Order pursuant to Rule 65 of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 65, that, inter alia, froze Perkins’ assets. On September 15, this Court entered a stipulated preliminary injunction against Perkins.

The Commission, by and through its counsel, and Perkins, by and through her counsel, have agreed and stipulated to the entry of this Stipulated Final Judgment and Order for Permanent Injunction ("Final Order") by this Court. Therefore, the Commission and Perkins having requested the Court to enter this Final Order, the Court makes the following findings of fact and orders the following:

FINDINGS

This Court has jurisdiction over the subject matter of this case and of the parties hereto;
The Commission's complaint states a claim upon which relief may be granted against Perkins under Section 5(a) of the FTC Act, 15 U.S.C. § 45(a).
Perkins waives any claim she may have under the Equal Access to Justice Act, 28 U.S.C. § 2412, concerning the civil prosecution of this action;
Perkins waives all rights to seek appellate review or otherwise challenge or contest the validity of this Final Order;
Entry of this Final Order is in the public interest.

DEFINITIONS

For purposes of this Final Order, the following definitions shall apply:

"Perkins" means defendant Susan Perkins.
"Business opportunity" or "Business venture" means any written or oral business arrangement, however denominated, whether or not covered by the Franchise Rule, which consists of the payment of any consideration for: a) the right or means to offer, sell, or distribute goods or services (whether or not identified by a trademark, service mark, trade name, advertising, or other commercial symbol); and b) assistance to any person in connection with or incident to the establishment, maintenance, or operation of a new business or the entry by an existing business into a new line or type of business.
“Franchise,” "Franchisee," and "Franchisor" are defined as in Section 436.2(a) of the Franchise Rule, 16 C.F.R. § 436.2(a), a copy of which is attached to this Final Order.
"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), and all cash, wherever located.

ORDER

CONDUCT PROHIBITIONS

IT IS THEREFORE ORDERED that, in connection with the promotion, marketing, offering for sale, or sale of any business opportunities, franchises, business ventures, goods or services, Perkins is hereby permanently restrained and enjoined from making, or assisting others in making, either orally or in writing, directly or by implication, any false or misleading statements or representations of material fact to any person, including but not limited to representations about the following:

A. The income, profits, or sales volume a purchaser can achieve;

B. The income, profits, or sales volume she has achieved in a particular business venture;

C. Her status as a current of former owner or operator of any business venture, or her level of success in owning or operating such venture.

JUDGMENT

II.

IT IS FURTHER ORDERED that Judgment in the amount of one hundred thousand dollars ($100,000) is entered against Defendant Perkins; provided, however, that the Commission will consider this Judgment satisfied should Perkins sign the attached cooperation agreement (Appendix A) within five days of entry of this Order; provided further that this Judgment shall be subject to the reopening conditions set forth in Paragraph III.

III.

IT IS FURTHER ORDERED that the Court's approval of the Judgment against Perkins contained in Paragraph II is expressly premised upon the truthfulness, accuracy, and completeness of the financial statements which Perkins has submitted to the Commission and also upon her fulfilling the terms of the attached cooperation agreement. In the event Perkins breaches the cooperation agreement (Appendix A), the entire amount of the Judgment set forth in Paragraph II ($100,000) will be rendered immediately due and payable by Perkins. In that event, Perkins waives any right to contest any of the allegations in the Complaint filed in this matter.

Furthermore, if, upon motion by the Commission, this Court finds that Perkins' financial statement either failed to disclose any material asset or source of income or materially misrepresented the value of any asset or source of income, the entire amount of the Judgment set forth in Paragraph II ($100,000), will be rendered immediately due and payable by Perkins. The Commission must file such a motion before Perkins’ duty under the cooperation agreement has been fulfilled. In that event, Perkins waives any right to contest any of the allegations in the Complaint filed in this matter.

Provided, however, that in all other respects this Final Order shall remain in full force and effect; and provided further, that proceedings instituted under this Paragraph III are in addition to, and not in lieu of, any other civil or criminal remedies as may be provided by law.

RECORD KEEPING

IV.

IT IS FURTHER ORDERED that, in order to facilitate the Commission's monitoring of compliance with the provisions of this Final Order, Perkins shall, for three (3) years after the date of entry of this Final Order:

A. Notify the Commission in writing, within thirty days after entry of this Final Order, and every year thereafter, of her current residence address and employment status, including the name and business address of her current employer(s), if any;

B. Notify the Commission in writing within thirty days of any change in her residential address(es). Such notification shall include her new address(es) and telephone number(s);

C. Notify the Commission in writing within thirty days of any change in her employment status. Such notice shall include the name(s), address(es), and telephone number(s) of her new employer(s), a statement of the nature of the business(es), and a statement of her duties and responsibilities in connection with the business(es);

IT IS FURTHER ORDERED that all notices required of Perkins by this Final Order shall be made to the following address:

Associate Director
Division of Marketing Practices
Federal Trade Commission
Room 238
6th Street & Pennsylvania Avenue, N.W.
Washington, D.C. 20580

VI.

IT IS FURTHER ORDERED that, within five (5) business days after receiving this Final Order as entered by the Court, Perkins shall submit to the Commission a truthful sworn statement that shall acknowledge receipt of this Final Order.

VII.

IT IS FURTHER ORDERED that this Court retains jurisdiction of this matter for the purpose of enabling any of the parties to this Final 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 Final Order, for the enforcement of compliance therewith or the punishment of violations thereof.

SO ORDERED, this _____day of _________, 1997, at __________.m.

__________________________________
Ursula Ungaro-Benages
United States District Judge

REVIEWED, STIPULATED AND AGREED TO BY:

________________________________Dated: _____________
Susan Perkins

_________________________________Dated:______________
Marc L. Barbakoff on behalf of Defendant
Susan Perkins

_________________________________Dated:______________
Richard Quaresima (A5500332)
Mona S. Spivack (A5500333)
Federal Trade Commission