UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

FEDERAL TRADE COMMISSION, and
STATE OF OKLAHOMA, Plaintiffs

v.

UNIVERSAL MARKETING SERVICES, INC., a corporation, et al. Defendants.

Civil Action No.

STIPULATED JUDGMENT AND
ORDER FOR PERMANENT INJUNCTION,
CONSUMER REDRESS AND OTHER EQUITABLE RELIEF AS TO UNITED MARKETING GROUP, LTD., AND
LOUIE PAULOZZA

WHEREAS, plaintiff the Federal Trade Commission ("FTC" or "Commission"), has filed its complaint for permanent injunction and other relief pursuant to sections 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., and plaintiff the State of Oklahoma acting through the Office of the Attorney General for the State of Oklahoma has joined in the complaint pursuant to the Telemarketing Act, 15 U.S.C. § 6101 et seq, alleging that defendants United Marketing Group, Ltd. ("UMG") and Louie Paulozza ("Paulozza") (collectively, the "Toronto Defendants"), violated Section 5 of the FTC Act, and the FTC's Trade Regulation Rule entitled "Telemarketing Sales Rule" ("TSR"), 16 C.F.R. §§ 310.1-310.8.

WHEREAS, in the interest of compromise and cooperation and to avoid the costs associated with future administrative and judicial proceedings with respect to the above matter, and while the Toronto Defendants neither admit nor deny any wrongdoing, the FTC, the State of Oklahoma, and the Toronto Defendants (collectively, "the Settling Parties") have agreed to the entry of this Stipulated Final Judgment and Order for Permanent Injunction ("Order") by this Court to resolve all matters in dispute between them in this action.

NOW, THEREFORE, the Settling Parties having requested the Court to enter this Order,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:

FINDINGS

1. This Court has jurisdiction of the subject matter of this case and of the parties consenting hereto;

2. Venue is proper as to all parties in the Western District of Oklahoma;

3. The activities of the Toronto Defendants are in or affecting commerce, as defined in the FTC Act, 15 U.S.C. § 44;

4. The complaint states a claim upon which relief may be granted against the Toronto Defendants under Sections 5 and 19 of the FTC Act, 15 U.S.C. §§ 45(a) and 57b, and the TSR, 16 C.F.R. Part 310;

5. The Toronto Defendants waive all rights that may arise under the Equal Access to Justice Act, 28 U.S.C. § 2412, amended by Pub. L. 104-121, 110 Stat. 847, 863-64 (1996);

6. The Toronto Defendants waive all rights to seek appellate review or otherwise challenge or contest the validity of this Order, and further waive and release any claim the Toronto Defendants may have against the FTC, the Oklahoma Attorney General's Office, or their employees, and agents; and

7. This Order does not constitute and shall not be interpreted to constitute an admission by the Toronto Defendants that they have engaged in violations of the FTC Act or the TSR.

DEFINITIONS

1. "Assisting others" means providing any of the following goods or services to any person or business entity: (a) performing customer service functions, including but not limited to receiving or responding to consumer complaints; (b) formulating or providing, or arranging for the formulation or provision of, any telephone sales script or any other written marketing material; (c) providing names of, or assisting in the generation of, potential customers; (d) performing marketing services of any kind; or (e) acting as an officer or director of the business entity.

2. "Consumer" means a purchaser, customer, subscriber, or natural person.

3. "Telemarketing" means any business activity (including, but not limited to, initiating or receiving telephone calls, managing others who initiate or receive telephone calls, operating an enterprise that initiates or receives telephone calls, owning an enterprise that initiates or receives telephone calls, or otherwise participating as an officer, director, employee or independent contractor in an enterprise that initiates or receives telephone calls) that involves attempts to induce consumers to purchase any item, good, service, partnership interest, trust interest or other beneficial interest, to make a charitable contribution, or to enter a contest for a prize, by means of telephone sales presentations, either exclusively or in conjunction with the use of other forms of marketing. Provided that the term "telemarketing" shall not include transactions that are not completed until after a face-to-face contact between the seller or solicitor and the consumers solicited. Provided further, however, that for purposes of Paragraph II.A. of this Order, enjoining violations of the TSR, the definition set forth in 16 C.F.R. 310.2 shall apply.

BAN

I.

IT IS THEREFORE ORDERED that the Toronto Defendants, inclusively or in any combination thereof, are permanently restrained and enjoined from engaging in, or assisting others in, the promotion, advertising, marketing, offering for sale, or sale of any credit card registration or credit card protection services.

PROHIBITED BUSINESS PRACTICES

II.

IT IS FURTHER ORDERED that the Toronto Defendants, their officers, agents, servants, employees, attorneys, and those persons or entities in active concert or participation with them who receive actual notice of this Order by personal service or otherwise, in regard to any business activity in which they engage, are hereby permanently restrained and enjoined from:

A. Failing to comply with the TSR, 16 C.F.R. Part 310, or as the TSR may hereafter be amended;

 

B. Misrepresenting any affiliation with any consumer's credit card issuer or any other third party;

 

C. Making any material misrepresentation about a consumer's credit-related rights or obligations under law;

 

D. Misrepresenting that their Y2K credit card protection package or any other Y2K related product they sell will safeguard against, mitigate, or correct potential failures or errors in credit card transactions resulting from Y2K related problems;

 

E. Making any other misrepresentation of fact material to a consumer's purchasing decision; or

 

F. Charging a consumer's credit card account without the consumer's authorization.

III.

IT IS FURTHER ORDERED that the Toronto Defendants are hereby permanently restrained and enjoined from providing to any person, except agents of the Plaintiffs or other law enforcement authorities, the name, address, telephone number, or credit card or bank account number of any consumer who provided such information to or did business with either defendant relating to the subject matter of this Order; provided, however, that the Toronto Defendants may provide such information if required to do so by Court Order.

IV.

IT IS FURTHER ORDERED that, in the event the Toronto Defendants or their agents tape-record any conversation with a consumer to verify or confirm that a consumer is agreeing to purchase any of the Toronto Defendants' services, the Toronto Defendants are permanently restrained and enjoined from accepting or processing such purchases unless the tape-recording meets the following criteria:

A. After obtaining permission from the consumer to tape-record the conversation, the tape recording shall reflect the entirety of the verification conversation;

 

B. The tape recording clearly must reflect the consumer's agreement to tape-record the call;

 

C. The tape recording must include clear, complete, and understandable disclosures of all material terms of the purchase, and the consumer's express agreement to such terms. The material terms disclosed in the tape-recorded conversation shall be consistent with any information previously disclosed to the consumer. Material terms include, but are not limited to:

 

1. A description of the service or product;

 

2. The cost of the service or product;

 

3. The amount of any recurring charges;

 

4. Limitations on any right to obtain a refund; and

 

5. The business name, and an address and telephone number to which the consumer may address any questions or complaints.

This Part of this Order shall not affect any obligation to comply with any federal, state, or local law regarding the tape-recording of telephone conversations.

MONETARY JUDGMENT

V.

IT IS FURTHER ORDERED that a judgment in the amount of FORTY-FIVE THOUSAND U.S. DOLLARS ($45,000 U.S.D.) is hereby entered against the Toronto Defendants, and their successors and assigns.

A. The Toronto Defendants shall make the required payment by wire transfer, certified check, or cashier's check to the FTC within five (5) days of the date of entry of this Order. In the event of any default in payment, which default continues for ten (10) days beyond the due date of payment, the entire unpaid judgment, together with interest, as computed pursuant to 28 U.S.C. § 1961, from the date of default to the date of payment, shall immediately become due and payable.

 

B. The FTC and the State of Oklahoma shall pay such funds to the United States Treasury and/or the Oklahoma Attorney General's Office as disgorgement, unless the FTC and the State of Oklahoma believe that a consumer redress program is feasible. If the FTC and the State of Oklahoma, in their sole discretion, determine that consumer redress is wholly or partially practicable, they shall submit a plan for the disbursement of funds to the Court for review and approval.

 

C. The Toronto Defendants expressly waive their rights to litigate the issue of disgorgement. The Toronto Defendants acknowledge and agree that all money paid pursuant to this Order is irrevocably paid to the FTC for purposes of settlement between the Settling Parties.

 

D. For purposes of Paragraph V of this Order, and any subsequent proceedings in this cause, the Toronto Defendants waive any right to contest any of the allegations of Plaintiffs' Complaint, and the Toronto Defendants stipulate that the facts as alleged in that Complaint shall be taken as true in any subsequent proceeding to which either Toronto Defendant is a party. This stipulation shall not constitute nor be deemed to constitute an admission of any fact.

RIGHT TO REOPEN

VI.

IT IS FURTHER ORDERED that the Commission's agreement to this Order is expressly premised upon the truthfulness, accuracy, and completeness of the Toronto Defendants' financial condition as represented in each of the Toronto Defendants' financial statements previously submitted to the Commission, which contain material information relied upon by the Commission in negotiating and agreeing to the terms of this Order (collectively, the "Financial Statements"): (1) Net Worth Statement of Louis Paulozza (attached to the facsimile dated April 3, 2000, from MacKenzie Canter, III); and (2) Supplemental Affidavit of Louis Paulozza, dated April 14, 2000 (attached to the facsimile dated April 14, 2000, from MacKenzie Canter, III). Defendant Paulozza shall, within five (5) business days after receipt by the Toronto Defendants of this Order as entered by the Court, submit to the Commission a truthful sworn statement, in the form shown on Attachment A, that shall attest to the truthfulness, accuracy, and completeness of the Financial Statements. If the Commission has reason to believe that any of the above-referenced Financial Statements failed to disclose any material amount, materially misrepresented the value of any item, or made any other material misrepresentation or omission, the Commission may request that this Order be reopened for the sole purpose of allowing the Commission to modify the monetary liability of the Toronto Defendants. If the Court finds that either Toronto Defendant failed to disclose any material amount, materially misrepresented the value of any item, or made any other material misrepresentation or omission in the above-referenced Financial Statements, the Court shall enter judgment for consumer redress against the Toronto Defendants, in favor of the Commission, in the amount of ONE MILLION THREE HUNDRED THOUSAND U.S. DOLLARS ($1,300,000 U.S.D.), less the amount the Toronto Defendants have already paid to the Commission under Paragraph V of this Order; provided, however, that in all other respects this Order shall remain in full force and effect unless otherwise ordered by the Court and that the Toronto Defendants have no right to contest any of the allegations in the Commission's Complaint in this matter in any proceedings brought pursuant to this Paragraph.

COMPLIANCE AND RECORD KEEPING PROVISIONS

VII.

IT IS FURTHER ORDERED that, in connection with the promotion, offering for sale, or sale of any good or service to consumers through telemarketing, the Toronto Defendants shall create and maintain procedures to ensure compliance by their employees and agents (including telemarketers and other independent contractors) with this Order.VIII.

IT IS FURTHER ORDERED that, for a period of three (3) years from the date of entry of this Order, the Toronto Defendants, in connection with any business engaged in telemarketing, or in assisting others in such business, are hereby restrained and enjoined from failing to create, and from failing to retain for a period of three (3) years following the date of such creation, unless otherwise specified:

A. Books, records and accounts that, in reasonable detail, accurately and fairly reflect the cost of goods or services sold, revenues generated, and the disbursement of such revenues;

 

B. Records accurately reflecting: the name, address, and telephone number of each person employed in any capacity by the Toronto Defendants, including as an independent contractor; that person's job title or position; the date upon which the person commenced work; and the date and reason for the person's termination, if applicable.

 

The Toronto Defendants shall retain such records for any terminated employee for a period of two (2) years following the date of termination;

 

C. Records containing the names, addresses, phone numbers, dollar amounts paid, quantity of items or services purchased or provided, and description of items or services purchased or provided for all consumers to whom the Toronto Defendants have sold or provided any goods or services;

 

D. Tape recordings created by the Toronto Defendants pursuant to Paragraph IV of this Order.

 

E. Records that reflect, for every consumer complaint or refund request, whether received by the Toronto Defendants directly or indirectly or through any third party:

 

1. The consumer's name, address, telephone number and the dollar amount paid by the consumer;

 

2. The written complaint or refund request, if any, and the date of the complaint or refund request;

 

3. The basis of the complaint, including the name of any salesperson complained against, and the nature and result of any investigation conducted concerning any complaint;

 

4. Each response and the date of the response;

 

5. Any final resolution and the date of the resolution; and

 

6. In the event of a denial of a refund request, the reason for the denial; and

 

F. Copies of all sales scripts, training materials, advertisements, or other marketing materials utilized; provided that copies of all sales scripts, training materials, advertisements, or other marketing materials utilized shall be retained for three (3) years after the last date of dissemination of any such materials.

IX.

IT IS FURTHER ORDERED that, in order that compliance with the provisions of this Order may be monitored:

A. For a period of three (3) years from the date of entry of this Order, defendants shall notify the Commission of the following:

 

1. Any changes in Paulozza's residence, mailing addresses, and telephone numbers, within ten (10) days of the date of such change;

 

2. Any changes in Paulozza's employment status (including self-employment) within ten (10) days of such change. Such notice shall include the name and address of each business that any such defendant is affiliated with or employed by, a statement of the nature of the business, and a statement of such defendant's duties and responsibilities in connection with the business or employment; and

 

3. Any proposed change in UMG's corporate structure, or any proposed change in the structure of any business entity owned or controlled by Paulozza, such as creation, incorporation, dissolution, assignment, sale, merger, creation, dissolution of subsidiaries, proposed filing of a bankruptcy petition, or change in the corporate name or address, or any other change that may affect compliance obligations arising out of this Order, thirty (30) days prior to the effective date of any proposed change; provided, however, that, with respect to any proposed change in the corporation about which any defendant learns less than thirty (30) days prior to the date such action is to take place, such defendant shall notify the Commission as soon as is practicable after learning of such proposed change;

 

B. For the purposes of this Order, defendants shall, unless otherwise directed by the Commission's authorized representatives, mail all written notifications to the Commission to:

 

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

C. For the purposes of this Part, "employment" includes the performance of services as an employee, consultant, or independent contractor; and "employers" include any individual or entity for whom any defendant performs services as an employee, consultant, or independent contractor; and

 

D. For purposes of compliance with this Order, the Commission is authorized to communicate directly with defendants.

X.

IT IS FURTHER ORDERED that, for a period of three (3) years from the date of entry of this Order, for the purpose of further determining compliance with this Order, defendants shall permit representatives of the Commission, within fifteen (15) business days of receipt of written notice from the Commission:

A. Access during normal business hours to any office, or facility storing documents, of any business where (1) any defendant is the majority owner of the business or directly or indirectly manages or controls the business, and where (2) the business is engaged in telemarketing, or in assisting others engaged in such business. In providing such access, defendants shall permit representatives of the Commission to inspect and copy all documents relevant to any matter contained in this Order; and shall permit Commission representatives to remove documents relevant to any matter contained in this Order for a period not to exceed five (5) business days so that the documents may be inspected, inventoried, and copied; and

 

B. To interview the officers, directors, and employees, including all personnel involved in responding to consumer complaints or inquiries, and all sales personnel, whether designated as employees, consultants, independent contractors or otherwise, of any business to which Paragraph (A) of this Part applies, concerning matters relating to compliance with the terms of this Order. The person interviewed may have counsel present.

Provided that, upon application of the Commission and for good cause shown, the Court may enter an ex parte order granting immediate access to defendants' business premises for the purposes of inspecting and copying all documents relevant to any matter contained in this Order.

XI.

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

A. Provide a copy of this Order to, and obtain a signed and dated acknowledgment of receipt of same from, each officer or director, each individual serving in a management capacity, all personnel involved in responding to consumer complaints or inquiries, and all sales personnel, whether designated as employees, consultants, independent contractors or otherwise, immediately upon employing or retaining any such persons, for any business where (1) any defendant is the majority owner of the business or directly or indirectly manages or controls the business, and where (2) the business is engaged in telemarketing, or in assisting others engaged in such business; and

 

B. Maintain for a period of three (3) years after creation, and upon reasonable notice, make available to representatives of the Commission, the original signed and dated acknowledgments of the receipt of copies of this Order, as required in Paragraph (A) of this Part.

XII.

IT IS FURTHER ORDERED that within five (5) business days after receipt by the Toronto Defendants of this Order as entered by the Court, the Toronto Defendants shall submit to the Commission a truthful sworn statement, in the form shown on Attachment A, that shall acknowledge receipt of this Order.

ENTRY OF ORDER

XIII.

The Settling Parties, through their respective counsel, hereby consent to entry of the foregoing Order which shall constitute a final judgment and order in this matter. The Settling Parties further stipulate and agree that the entry of the foregoing Order shall constitute a full, complete and final settlement of this action. The Settling Parties further stipulate that this Order embodies all of the agreements among them and that they have not relied upon any representations or statements not included herein.

XIV.

IT IS FURTHER ORDERED that the FTC and the State of Oklahoma release UMG and Paulozza, and each of them, from further liability arising from the allegations in the complaint for permanent injunction and other relief, except for the obligations arising out of this Order, and that there is no just reason for delay of entry of this Order and, pursuant to Federal Rule of Civil Procedure 54(b), the clerk shall enter this Order immediately upon Court approval.

XV.

IT IS FURTHER ORDERED that this Court will retain jurisdiction of this matter for the purpose of enabling any 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 the punishment of violations thereof.

SO ORDERED, this ______ day of __________, 2000.

UNITED STATES DISTRICT JUDGE
WESTERN DISTRICT OF OKLAHOMA

The parties, by their respective counsel, hereby consent to the terms and conditions of the Consent Decree as set forth above and consent to the entry thereof. The Toronto Defendants waive any rights that may arise under the Equal Access to Justice Act, 28 U.S.C. § 2412, amended by Pub. L. 104-121, 110 Stat. 847, 863-64 (1996).

FOR DEFENDANTS

FOR PLAINTIFFS

ATTACHMENT A

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA

FEDERAL TRADE COMMISSION, and
STATE OF OKLAHOMA, Plaintiffs

v.

UNIVERSAL MARKETING SERVICES, INC., a corporation, et al. Defendants.

Civil Action No.

AFFIDAVIT OF LOUIE PAULOZZA

Louie Paulozza, being duly sworn, hereby states and affirms as follows:

1. My name is Louie Paulozza. My current residence address is _____________________________________________________. I am a Canadian citizen and over the age of eighteen. I have personal knowledge of the facts set forth in this Affidavit due to my position in United Marketing Group, Ltd.

 

2. I submitted the following Financial Statements to the Federal Trade Commission on behalf of myself and United Marketing Group, Ltd.: (1) Net Worth Statement of Louis Paulozza (attached to the facsimile dated April 3, 2000, from MacKenzie Canter, III); and (2) Supplemental Affidavit of Louis Paulozza, dated April 14, 2000 (attached to the facsimile dated April 14, 2000, from MacKenzie Canter, III). I submitted these Financial Statements voluntarily and with the understanding that they may affect action by the Federal Trade Commission or a federal court. The information contained in these financial statements is true, accurate, and complete, and contains all the requested facts and information of which I have notice or knowledge. I know of the penalties for false statements under 18 U.S.C. § 1001, 18 U.S.C. § 1621, and 18 U.S.C. § 1623 (five years imprisonment and/or fines).

 

3. On _________, I received a copy of the Stipulated Judgment and Order, which was signed by the Honorable __________________ and entered by the Court on ________________. A true and correct copy of the Order I received is appended to this Affidavit.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on ___________, at ___________________.

____________________________
Louie Paulozza

Subscribed and sworn to before me
this _____ day of _________, 2000.

_____________________________
Notary Public

My Commission Expires:
_____________________________