UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION

In the Matter of

MOTOR UP CORPORATION, INC. and
MOTOR UP AMERICA, INC., corporations, and
KYLE BURNS, individually and as an officer of the corporations.

Docket No. 9291

AGREEMENT CONTAINING CONSENT ORDER

The Federal Trade Commission has conducted an investigation of certain acts and practices of Motor Up Corporation, Inc., Motor Up America, Inc., corporations, and Kyle Burns, individually and as an officer of the corporations ("respondents"). Respondents, having been represented by counsel, are willing to enter into an agreement containing a consent order resolving the allegations contained in the attached complaint. Therefore,

IT IS HEREBY AGREED by and between Motor Up Corporation, Inc., Motor Up America, Inc., by their duly authorized officers, and Kyle Burns, individually and as an officer of the corporations, and counsel for the Federal Trade Commission that:

1.a. Respondent Motor Up Corporation, Inc. is a Pennsylvania corporation with its principal office or place of business at 123 South Broad Street, Philadelphia, Pennsylvania 19102.

 

1.b. Respondent Motor Up America, Inc. is a Pennsylvania corporation with its principal office or place of business at 759 Federal Highway, Suite 312, Stuart, Florida 34994. Motor Up America, Inc. is a wholly owned subsidiary of Motor Up Corporation, Inc.

 

1.c. Respondent Kyle Burns is president of Motor Up Corporation, Inc. Individually or in concert with others, he formulates, directs, or controls the policies, acts, or practices of the corporate respondents, including the acts or practices alleged in this complaint. His principal office or place of business is the same as that of Motor Up Corporation.

 

2. Respondents have been served with a copy of the complaint issued by the Federal Trade Commission charging them with violations of Section 5(a) of the Federal Trade Commission Act, and have filed answers to the complaint.

 

3. Respondents admit all the jurisdictional facts set forth in the complaint.

 

4. Respondents waive:

 

a. Any further procedural steps;

 

b. The requirement that the Commission's decision contain a statement of findings of fact and conclusions of law;

 

c. All rights to seek judicial review or otherwise to challenge or contest the validity of the order entered pursuant to this agreement; and

 

d. Any claim under the Equal Access to Justice Act.

 

5. This agreement shall not become part of the public record of the proceeding unless and until it is accepted by the Commission. If this agreement is accepted by the Commission, it, together with the complaint, will be placed on the public record for a period of thirty (30) days and information about it publicly released. The Commission thereafter may either withdraw its acceptance of this agreement and so notify respondents, in which event it will take such action as it may consider appropriate, or issue and serve its decision in disposition of the proceeding.

 

6. This agreement is for settlement purposes only and does not constitute an admission by respondents that the law has been violated as alleged in the complaint, or that the facts as alleged in the complaint, other than the jurisdictional facts, are true.

 

7. This agreement contemplates that, if it is accepted by the Commission, and if such acceptance is not subsequently withdrawn by the Commission pursuant to the provisions of Section 3.25(f) of the Commission's Rules, the Commission may, without further notice to respondents, (1) issue its decision containing the following order in disposition of the proceeding, and (2) make information about it public. When so entered, the order shall have the same force and effect and may be altered, modified, or set aside in the same manner and within the same time provided by statute for other orders. The order shall become final upon service. Delivery of the decision and order to respondents' addresses as stated in this agreement by any means specified in Section 4.4(a) of the Commission's Rules shall constitute service. Respondents waive any right they may have to any other manner of service. The complaint may be used in construing the terms of the order. No agreement, understanding, representation, or interpretation not contained in the order or in the agreement may be used to vary or contradict the terms of the order.

 

8. Respondents have read the complaint and consent order. They understand that they may be liable for civil penalties in the amount provided by law and other appropriate relief for each violation of the order after it becomes final.

ORDER

DEFINITIONS

For purposes of this order, the following definitions shall apply:

1. "Motor Up" shall mean Motor Up No Oil Change Engine Treatment Concentrate.

 

2. "Competent and reliable scientific evidence" shall mean tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that has been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.

 

3. Unless otherwise specified, "respondents" shall mean Motor Up Corporation, Inc. and Motor Up America, Inc., corporations, their successors and assigns and their officers; Kyle Burns, individually and as an officer of Motor Up Corporation, Inc.; and each of the above's 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 respondents, directly or through any corporation, subsidiary, division, or other device, in connection with the labeling, advertising, promotion, offering for sale, sale, or distribution of any engine treatment, fuel treatment, motor oil, grease, transmission fluid, or brake fluid, and any additive intended for use with or as a substitute for such products, in or affecting commerce, shall not make any representation, in any manner, expressly or by implication:

A. that, compared to motor oil alone, use of such product:

 

(1) Reduces engine wear;

 

(2) Reduces engine wear up to 50 percent or by any other quantity;

 

(3) Reduces adhesive engine wear by up to 90.17 percent or by any other quantity;

 

(4) Reduces engine wear during cold starts;

 

(5) Provides more protection against engine wear in cold temperatures;

 

(6) Extends the duration of engine life; or

 

(7) Helps prevent engine breakdowns; or

 

B. that such product:

 

(1) Prevents corrosion in engines;

 

(2) Will not drain out from the engine even when the oil is changed;

 

(3) Protects engines for up to 50,000 miles; or

 

(4) Protects against engine wear even without motor oil, grease, transmission fluid or brake fluid; or

 

C. regarding the performance, benefits, efficacy, attributes, or use of such product, unless, at the time the representation is made, respondents possess and rely upon competent and reliable evidence, which when appropriate must be competent and reliable scientific evidence, that substantiates the representation.

II.

IT IS FURTHER ORDERED that respondents, directly or through any corporation, subsidiary, division, or other device, in connection with the labeling, advertising, promotion, offering for sale, sale, or distribution of Motor Up or any other product for use in a motor vehicle, in or affecting commerce, shall not misrepresent, in any manner, expressly or by implication, the existence, contents, validity, results, conclusions, or interpretations of any test or study.

III.

IT IS FURTHER ORDERED that respondents, in connection with the manufacturing, advertising, labeling, packaging, offering for sale, sale, or distribution of Motor Up or any other product for use in a motor vehicle, in or affecting commerce, shall not misrepresent, in any manner, expressly or by implication, that any demonstration, picture, experiment, illustration or test proves, demonstrates or confirms any material quality, feature or merit of such product, or the superiority or comparability of the product in a material respect relative to any other product.

IV.

IT IS FURTHER ORDERED that respondents Motor Up Corporation, Inc. and Motor Up America, Inc., and their successors and assigns, and respondent Kyle Burns shall, for five (5) years after the last date of dissemination of any representation covered by this order, maintain and upon request make available to the Federal Trade Commission for inspection and copying:

A. All advertisements and promotional materials containing the representation;

 

B. All materials that were relied upon in disseminating the representation; and

 

C. All tests, reports, studies, surveys, demonstrations, or other evidence in their possession or control that contradict, qualify, or call into question the representation, or the basis relied upon for the representation, including complaints and other communications with consumers or with governmental or consumer protection organizations.

V.

IT IS FURTHER ORDERED that respondents Motor Up Corporation, Inc. and Motor Up America, Inc., and their successors and assigns, and respondent Kyle Burns shall deliver a copy of this order to all current and future principals, officers, directors, and managers, and 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.

VI.

IT IS FURTHER ORDERED that respondents Motor Up Corporation, Inc. and Motor Up America, Inc., and their successors and assigns, shall notify the Commission at least thirty (30) days prior to any change in the corporation(s) that may affect compliance obligations arising under this order, including but not limited to a dissolution, assignment, sale, merger, or other action that would result in the emergence of a successor corporation; the creation or dissolution of a subsidiary, parent, or affiliate that engages in any acts or practices subject to this order; the proposed filing of a bankruptcy petition; or a change in the corporate name or address. Provided, however, that, with respect to any proposed change in the corporation about which respondents learn less than thirty (30) days prior to the date such action is to take place, respondents shall notify the Commission as soon as is practicable after obtaining such knowledge. 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.

VII.

IT IS FURTHER ORDERED that respondent Kyle Burns, for a period of ten (10) 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.

VIII.

IT IS FURTHER ORDERED that respondents Motor Up Corporation, Inc. and Motor Up America, Inc., and their successors and assigns, and respondent Kyle Burns 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 they have complied with this order.

IX.

This order will terminate twenty (20) years from the date of its issuance, 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:

A. Any Part in this order that terminates in less than twenty (20) years;

 

B. This order's application to any respondent that is not named as a defendant in such complaint; and

 

C. This order if such complaint is filed after the order has terminated pursuant to this Part.

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.

This Agreement Containing Consent Order is signed the _____ day of November 1999.

MOTOR UP CORPORATION, INC.

By:
______________________________________
Name: Kyle Burns
Title: President

MOTOR UP AMERICA, INC.

By:
______________________________________
Name:
Title:

_______________________________________
KYLE BURNS, individually
and as an officer of said corporations

_______________________________________
EDWARD F. GLYNN, JR.,
Attorney for Respondents

_______________________________________
GINA SCHAAR HOWARD,
Counsel for the Federal Trade Commission

APPROVED:

___________________________________
HEATHER HIPPSLEY, Assistant Director
Enforcement Division, Bureau of Consumer Protection

___________________________________
ELAINE D. KOLISH, Associate Director
Enforcement Division, Bureau of Consumer Protection

___________________________________
JOAN Z. BERNSTEIN
Director, Bureau of Consumer Protection