9723308 UNITED STATES OF AMERICA
In the Matter of Kalvin P. Schmidt, individually, and doing business as DKS Enterprises, DS Productions, DES Enterprises, www.mkt-america.com, and www.mkt-usa.com. Docket NO. C-3834 DECISION AND ORDER The Federal Trade Commission having initiated an investigation of certain acts and practices of the respondent named in the caption hereof, and the respondent having been furnished thereafter with a copy of a draft complaint which the Bureau of Consumer Protection proposed to present to the Commission for its consideration and which, if issued by the Commission, would charge respondent with violation of the Federal Trade Commission Act; and The respondent, his attorney, and counsel for the Commission having thereafter executed an agreement containing a consent order, an admission by the respondent for purposes of the order of all the jurisdictional facts set forth in the aforesaid draft complaint, a statement that the signing of said agreement is for settlement purposes only and does not constitute an admission by respondent that the law has been violated as alleged in such complaint, or that the facts as alleged in such complaint, other than jurisdictional facts, are true, and waivers and other provisions as required by the Commission's Rules; and The Commission having thereafter considered the matter and having determined that it had reason to believe that respondent has violated the said Act, and that a complaint should issue stating its charges in that respect, and having thereupon accepted the executed consent agreement and placed such agreement on the public record for a period of sixty (60) days, now in further conformity with the procedure prescribed in § 2.34 of its Rules, the Commission hereby issues its complaint, makes the following jurisdictional findings and enters the following order: 1. Respondent Kalvin P. Schmidt is a Minnesota resident who does business as DKS Enterprises, DS Productions, DES Enterprises, www.mkt-america.com, and www.mkt-usa.com. He conducts his business activities out of his home, 911 3rd Street, N.W., Waseca, Minnesota 56093. 2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondent, and the proceeding is in the public interest. ORDER DEFINITIONS For purposes of this order, the following definitions shall apply: 1. "Prohibited Marketing Program" means a pyramid sales scheme, ponzi scheme, chain marketing scheme, or other marketing plan or program in which a person who participates makes a payment and receives the right, license or opportunity to derive income as a participant primarily from: (i) the recruitment of additional recruits by the participant, program promotor or others; (ii) sales made to or by such recruits or their recruits; or (iii) any other payments made by recruits. A "Prohibited Marketing Program" does not include a marketing plan or program in which the program promotor demonstrates that it has instituted and enforced rules that have the actual effect of insuring that a participant derives income primarily from the sale of goods or services to persons who do not recruit participants into the program. For purposes of this Order, the phrase "goods or services" does not include a membership or opportunity to participate in a sales or marketing program, or access codes or numbers which allow participation in a sales or marketing program. 2. "Clearly and prominently" shall mean as follows: The disclosure shall be in understandable language and syntax. Nothing contrary to,
inconsistent with, or in mitigation of the disclosure shall be used in any advertisement
or on any label. 3. Unless otherwise specified, "respondent" shall mean Kalvin P. Schmidt,
individually and doing business as DKS Enterprises, DS Productions, DES Enterprises,
www.mkt-america.com, and www.mkt-usa.com; and, his agents, representatives, and employees. 4. "Commerce" shall mean as defined in Section 4 of the Federal Trade
Commission Act, 15 U.S.C. § 44. I. IT IS ORDERED THAT respondent, directly or through any corporation,
subsidiary, division, or other device, shall cease and desist from engaging,
participating, or assisting in any manner or capacity whatsoever in any Prohibited
Marketing Program. II. IT IS FURTHER ORDERED that respondent, directly
or through any corporation, subsidiary, division, or other device, in connection with any marketing plan or program, or with the
promotion, offering for sale, sale or distribution of any good or service, shall not: unless such representation is true and, at the time it is
made, respondent possesses and relies upon competent and reliable evidence that
substantiates the representation. III. IT IS FURTHER ORDERED that respondent Kalvin P. Schmidt, in connection with any
business owned or controlled, in whole or in part, by him, for five (5) years after the
date of issuance of this order, shall maintain and upon request make available to the
Federal Trade Commission, for inspection and copying, business records demonstrating his
compliance with the terms and provisions of this order, including: IV. IT IS FURTHER ORDERED that respondent Kalvin P. Schmidt shall deliver a copy of this
order to all current and future employees, agents, and representatives having
responsibilities with respect to the subject matter of this order, and shall secure from
each such person a signed and dated statement acknowledging receipt of the order.
Respondents shall deliver this order to current personnel within thirty (30) days after
the date of service of this order, and to future personnel within thirty (30) days after
the person assumes such position or responsibilities. V. IT IS FURTHER ORDERED that respondent Kalvin P. Schmidt, for a period of seven (7)
years after the date of issuance of this order, shall notify the Commission of the
discontinuance of his current business or employment, or of his affiliation with any new
business or employment. The notice shall include respondent's new business address and
telephone number and a description of the nature of the business or employment and his
duties and responsibilities. All notices required by this Part shall be sent by certified
mail to the Associate Director, Division of Enforcement, Bureau of
Consumer Protection, Federal Trade Commission, Washington, D.C. 20580. VI. IT IS FURTHER ORDERED that Kalvin P. Schmidt shall, within sixty (60) days after the
date of service of this order, and at such other times as the Federal Trade Commission may
require, file with the Commission a report, in writing, setting forth in detail the manner
and form in which he has complied with this order. VII. This order will terminate on November 3, 2018, or twenty (20) years from the most
recent date that the United States or the Federal Trade Commission files a complaint (with
or without an accompanying consent decree) in federal court alleging any violation of the
order, whichever comes later; provided, however, that the filing of such a
complaint will not affect the duration of: Provided, further, that if such complaint is dismissed or a federal court
rules that the respondent did not violate any provision of the order, and the dismissal or
ruling is either not appealed or upheld on appeal, then the order will terminate according
to this Part as though the complaint had never been filed, except that the order will not
terminate between the date such complaint is filed and the later of the deadline for
appealing such dismissal or ruling and the date such dismissal or ruling is upheld on
appeal. By the Commission. Donald S. Clark ISSUED: November 3, 1998 |