IN THE UNITED STATES DISTRICT COURT FEDERAL TRADE COMMISSION, Plaintiff, v. GEORGE L. CAPELL, Defendant. Case No. CONSENT DECREE AND ORDER FOR INJUNCTIVE AND OTHER RELIEF WHEREAS plaintiff, the Federal Trade Commission, has commenced this action by filing the Complaint herein; defendant has waived service of the Summons and Complaint; the parties have been represented by the attorneys whose names appear hereafter; and the parties have agreed to settlement of this action upon the following terms and conditions, without adjudication of any issue of fact or law and without defendant George L. Capell ("Capell") admitting liability for any of the matters alleged in the Complaint; THEREFORE, on the joint motion of plaintiff and defendant, it is hereby ORDERED, ADJUDGED, and DECREED as follows: 1. This Court has jurisdiction of the subject matter and of the parties. 2. The Complaint states a claim upon which relief may be granted against the defendant under Sections 5(a)(1), 13(b) and 16(a) of the Federal Trade Commission Act, 15 U.S.C. §§ 45(a)(1), 53(b) and 56(a). 3. Defendant George L. Capell waives any right to contest any of the allegations in the Complaint filed in this matter in any subsequent litigation filed by the Commission to enforce its rights pursuant to this Consent Decree. DEFINITION For the purposes of this Consent Decree, the term "Mail Order Rule" means the Federal Trade Commission's Trade Regulation Rule Concerning Mail or Telephone Order Merchandise, 16 C.F.R. Part 435, or as the Rule may hereafter be amended. INJUNCTION 1. Defendant George L. Capell, his successors and assigns, and his officers, agents, servants, employees and attorneys, and all persons in active concert or participation with him who receive actual notice of this Consent Decree by personal service or otherwise, are hereby enjoined from ever violating, directly or through any corporation, subsidiary, division or other device, any provision of the Mail Order Rule, including but not limited to:
2. In the event the Mail Order Rule is hereafter amended or modified, defendant's compliance with that Rule as so amended or modified shall not be deemed a violation of this injunction. A copy of the Mail Order Rule is attached hereto as "Appendix A" and incorporated herein as if fully set forth verbatim. 3. Defendant, his successors and assigns, and his officers, agents, servants, and employees, and all persons in active concert or participation with him who receive actual notice of this Consent Decree by personal service or otherwise, whether acting directly or through any business entity, corporation, subsidiary, division, or other device, in connection with the manufacturing, labeling, advertising, promotion, offering for sale, sale or distribution, in or affecting commerce, of any product or service, are hereby permanently restrained and enjoined from:
BOND REQUIREMENT 4. IT IS FURTHER ORDERED that defendant George L. Capell, whether acting directly or through any business entity, corporation, subsidiary, division, or other device, is hereby restrained and enjoined from engaging or participating in the advertising, offering for sale, sale, or distribution of any goods, in connection with mail or telephone order sales, as defined in Section 435.2(a) of the Mail Order Rule, 16 C.F.R. § 435.2(a), unless and until Defendant George L. Capell first obtains a performance bond. The performance bond shall be in the principal sum of four hundred thousand dollars ($400,000). Provided:
COMPLIANCE 5. Sixty (60) days after entry of this Consent Decree, defendant, his successors and assigns, shall provide a written report to the Federal Trade Commission, sworn to under penalty of perjury, setting forth in detail the manner and form in which he has complied and is complying with this Consent Decree. This report shall include but not be limited to:
Defendant shall mail this written notification to the Regional Director, Western Region, Federal Trade Commission, 901 Market Street, San Francisco, CA 94103. 6. Defendant George L. Capell, and his successors and assigns, shall, in connection with any business (a) of which Defendant Capell is the majority owner or which he directly or indirectly manages or controls, and (b) which engages in the advertising, offering for sale, sale, or distribution of any goods, by means of mail or telephone order sales, as defined in Section 435.2(a) of the Mail Order Rule, 16 C.F.R. § 435.2(a), within thirty (30) days of the entry of this Consent Decree, provide a copy of this Consent Decree and the Federal Trade Commission's Mail Order Rule Business Guide to each of said business's officers, and to each of its sales representatives, employees, agents, servants and attorneys whose duties include the exercise of managerial or supervisory responsibility regarding mail or telephone order sales, and secure from each such person a signed statement acknowledging receipt of a copy of this Consent Decree, and shall, within ten (10) days of complying with this paragraph, file an affidavit with the Regional Director, Western Region, Federal Trade Commission, 901 Market Street, San Francisco, CA 94103, setting forth the fact and manner of its compliance, including the name and title of each person to whom a copy of the Consent Decree has been provided. 7. For a period of three (3) years from the date of entry of this Consent Decree, defendant, his successors and assigns, shall provide a copy of this Consent Decree and the Federal Trade Commission's Mail Order Rule Business Guide to each officer, and to each sales representative, employee, agent, servant and attorney whose duties include the exercise of managerial or supervisory responsibility regarding mail or telephone order sales, within fifteen (15) days after such person commences his or her duties, and shall obtain from each such person a signed statement acknowledging receipt of this Consent Decree. 8. For a period of five (5) years from the date of entry of this Consent Decree, defendant, his successors and assigns, shall maintain and make available to the Federal Trade Commission, within thirty (30) days of the date of receipt of a written request, business records demonstrating compliance with the terms and provisions of this Consent Decree. 9. Defendant Capell shall, within five (5) days after the date of entry of this Consent Decree, notify the Commission in writing of his current residence address, mailing address, telephone numbers, and employment status, including the name and address of his current employer, and for a period of five (5) years from the date of entry of this Consent Decree, Defendant Capell shall notify the Commission of the following:
10. This action, and the relief awarded herein, is in addition to and not in lieu of other remedies as may be provided by law, including other proceedings the plaintiff may initiate to enforce this Consent Decree, or other civil or criminal remedies. 11. This Court shall retain jurisdiction of this matter for the purposes of enabling any of the parties to this Consent Decree 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 Consent Decree, for the enforcement of compliance therewith, or for the punishment of violations thereof. JUDGMENT IS THEREFORE ENTERED in favor of plaintiff and against defendant, pursuant to all the terms and conditions recited above. Dated this day of , 200 . ______________________________________
* * * * * 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. Defendant waives any rights that may arise under the Equal Access to Justice Act, 28 U.S.C. § 2412, concerning the investigation and prosecution of this action. FOR THE FEDERAL TRADE COMMISSION: _________________________________ _________________________________ FOR DEFENDANT GEORGE L. CAPELL: ___________________________________ ___________________________________ |