S. JAMES OTERO, District Judge.
Plaintiff, the Federal Trade Commission ("Commission" or "FTC"), filed its Complaint for Permanent Injunction and Other Equitable Relief, pursuant to Section 13(b) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. §53(b). Through counsel, having filed a joint motion, the Commission and Defendant Ian Gamberg ("Gamberg") stipulate to the entry of this Stipulated Order for Permanent Injunction and Monetary Judgment as to Defendant Gamberg ("Order") to resolve all matters in this action between them.
1. This Court has jurisdiction over this matter.
2. The Complaint charges that the Defendants participated in deceptive acts or practices in violation of Section 5 of the FTC Act, 15 U.S.C. § 45, in the mass mailing of deceptive cash prize notifications to hundreds of thousands of mostly elderly consumers throughout the United States.
3. Defendant Gamberg neither admits nor denies the allegations in the Complaint, except as specifically stated in this Order. Only for purposes of this action, Defendant Gamberg admits the facts necessary to establish jurisdiction.
4. Defendant Gamberg waives any claim that he may have under the Equal Access to Justice Act, 28 U.S. C. § 2412, concerning the prosecution of this action through the date of this Order, and agrees to bear his own costs and attorney fees.
5. Defendant Gamberg and the Commission waive all rights to appeal or otherwise challenge or contest the validity of this Order.
For the purpose of this Order, the following definitions apply:
A.
B.
C.
D. The terms
A. Making or assisting others in making, expressly or by implication, any false or misleading statement or representation of material fact concerning any good or service or the offer of any good or service, including, but not limited to:
B. Failing to disclose Clearly and Conspicuously:
A. Judgment in the amount of Eight Hundred Thousand Dollars ($800,000.00) is entered in favor of the Commission against Defendant Ian Gamberg, as equitable monetary relief.
B. Defendant Gamberg is ordered to pay to the Commission One Thousand Four Hundred Dollars ($1,400.00). Such payment must be made within seven (7) days of entry of this Order by electronic fund transfer in accordance with instructions previously provided by a representative of the Commission. Upon such payment, the remainder of the judgment is suspended, subject to the Subsections below.
C. The Commission's agreement to the suspension of part of the judgment is expressly premised upon the truthfulness, accuracy, and completeness of Defendant Gamberg's sworn financial statements and related documents (collectively "financial representations") submitted to the Commission, namely the Financial Statement of Defendant Gamberg signed on November 21, 2016, including the attachments, bank statements, receipts, and tax returns provided.
D. The suspension of the judgment will be lifted as to Defendant Gamberg if, upon motion by the Commission, the court finds that Defendant Gamberg failed to disclose any material asset, materially misstated the value of any asset, or made any other material misstatement or omission in the financial representations identified above.
E. If the suspension of the judgment is lifted, the judgment becomes immediately due as to Defendant Gamberg in the amount specified in Subsection A above (which the parties stipulate only for purposes of this Section represents the unjust enrichment alleged in the Complaint), less any payment previously made pursuant to this Section, plus interest computed from the date of entry of this Order.
A. Defendant Gamberg relinquishes dominion and all legal and equitable right, title, and interest in all assets transferred pursuant to this Order and may not seek the return of any assets.
B. The facts alleged in the Complaint will be taken as true, without further proof, in any subsequent civil litigation by or on behalf of the Commission, including in a proceeding to enforce its rights to any payment or monetary judgment pursuant to this Order, such as a nondischargeabilily complaint in any bankruptcy case.
C. The facts alleged in the Complaint establish all elements necessary to sustain an action by the Commission pursuant to Section 523(a)(2)(A) of the Bankruptcy Code, 11 U.S.C. § 523(a)(2)(A), and this Order will have collateral estoppel effect for such purposes.
D. Defendant Gamberg acknowledges that his Taxpayer Identification Number (Social Security Number or Employer Identification Number), which Defendant Gamberg previously submitted to the Commission, may be used for collecting and reporting on any delinquent amount arising out of this Order, in accordance with 31 U.S.C. § 7701.
A. Disclosing, using, or benefitting from customer information, including the name, address, telephone number, email address, social security number, other identifying information or any data that enables access to a customer's account (including a credit card, bank account, or other financial account), that Defendant Gamberg obtained prior to entry of this Order in connection with any Prize Promotion; and
B. Failing to destroy such customer information in all forms in his possession, custody, or control within thirty (30) days after entry of this Order.
A. Defendant Gamberg, within seven (7) days of entry of this Order, must submit to the Commission an acknowledgment of receipt of this Order sworn under penalty of perjury.
B. For five (5) years after entry of this Order, Defendant Gamberg, for any business that he is the majority owner or controls directly or indirectly, must deliver a copy of this Order to: (1) all principals, officers, directors, and LLC managers and members; (2) all employees, agents, and representatives who participate in any Prize Promotion; and (3) any business entity resulting from any change in structure as set forth in the Section titled Compliance Reporting. Delivery must occur within seven (7) days of entry of this Order for current personnel. For all others, delivery must occur before they assume their responsibilities.
C. From each individual or entity to which Defendant Gamberg delivered a copy of this Order, that Defendant must obtain, within 30 days, a signed and dated acknowledgement of receipt of this Order.
A. One year after entry of this Order, Defendant Gamberg must submit a compliance report, sworn under penalty of perjury:
B. For twenty (20) years after entry of this Order, Defendant Gamberg must submit a compliance notice, sworn under penalty of perjury, within fourteen (14) days of any change in the following:
C. Defendant Gamberg must submit to the Commission notice of the filing of any bankruptcy petition, insolvency proceeding, or similar proceeding by or against him within fourteen (14) days of its filing.
D. Any submission to the Commission required by this Order to be sworn under penalty of perjury must be true and accurate and comply with 28 U.S.C. § 1746, such as by concluding: "I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on: _____" and supplying the date, signatory's full name, title (if applicable), and signature.
E. Unless otherwise directed by a Commission representative in writing, all submissions to the Commission pursuant to this Order must be emailed to DEbrief@ftc.gov or sent by overnight courier (not the U.S. Postal Service) to: Associate Director for Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580. The subject line must begin: FTC v. Terry Somenzi, et al., Matter No. X160053.
A. Accounting records showing the revenues from all goods or services sold;
B. Personnel records showing, for each person providing services, whether as an employee or otherwise, that person's: name; addresses; telephone numbers; job title or position; dates of service; and (if applicable) the reason for termination;
C. Records of all consumer complaints and refund requests, whether received directly or indirectly, such as through a third party, and any response;
D. All records necessary to demonstrate full compliance with each provision of this Order, including all submissions to the Commission; and
E. A copy of each unique advertisement or other marketing material.
A. Within fourteen (14) days of receipt of a written request from a representative of the Commission, Defendant Gamberg must: submit additional compliance reports or other requested information, which must be sworn under penalty of perjury; appear for depositions; and produce documents for inspection and copying. The Commission is also authorized to obtain discovery, without further leave of court, using any of the procedures prescribed by Federal Rules of Civil Procedure 29, 30 (including telephonic depositions), 31, 33, 34, 36, 45, and 69.
B. For matters concerning this Order, the Commission is authorized to communicate directly with Defendant Gamberg. Defendant Gamberg must permit representatives of the Commission to interview any employee or other person affiliated with Defendant who has agreed to such an interview. The person interviewed may have counsel present.
C. The Commission may use all other lawful means, including posing, through its representatives as consumers, suppliers, or other individuals or entities, to Defendant or any individual or entity affiliated with Defendant, without the necessity of identification or prior notice. Nothing in this Order limits the Commission's lawful use of compulsory process, pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b-1.
D. Upon written request from a representative of the Commission, any consumer reporting agency must furnish consumer reports concerning Defendant Gamberg, pursuant to Section 604(1) of the Fair Credit Reporting Act, 15 U.S.C. §1681b(a)(1).
