Case4:13-cv-02136-DMR Document3 Filed05/13/13 Page1 of 28 and 56(a)(1). Defendant has waived service of the summons and the Complaint. Plaintiff and Defendant stipulate to the entry of this Stipulated Order for Permanent Injunction and Civil Penalty Judgment (“ Order ” ) to resolve all matters in dispute in this action between them. THEREFORE, IT IS ORDERED as follows: FINDINGS 1. This Court has jurisdiction over this matter. 2. The Complaint charges that Defendant participated in violations of the Telemarketing Sales Rule, 16 C.F.R. Part 310, that also constitute violations of Section 5 of the FTC Act, 15 U.S.C. § 45, in the assisting and facilitating of telemarketing. 3. Defendant neither admits nor denies any of the allegations in the Complaint, except as specifically stated in this Order. Only for purposes of this action, Defendant admits the facts necessary to establish jurisdiction. 4. Defendant waives any claim tha t it 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 its own costs and attorneys fees. 5. The parties waive all rights to appeal or otherwise cha llenge or contest the validity of this Order. DEFINITIONS For the purpose of this Order, the following definitions shall apply: 1. “ Assisting other persons ” means providing any of the following goods or services to another person while knowing or consciously avoiding knowing that the person receiving assistance is engaged in an act or practice that is prohibited by this Order: (i) serving as [Proposed] Stipulated Order for Permanent Injunction and Civil Penalty Judgment, p. 2 Case4:13-cv-02136-DMR Document3 Filed05/13/13 Page2 of 28 an officer, director, or consultant; (ii) initiating telephone calls for the purpose of delivering prerecorded messages; (iii) providing or arranging for access to software, equipment that dials stored or generated telephone numbers, or telecommunications services for the purpose of initiating telephone calls that deliver prerecorded messages; (iv) p roviding or arranging for access to services that permit alteration of the name of the calling party displayed by caller identification services; (v) providing or acquiring lists of names or telephone numbers for the purpose of contacting persons on the l ist by telephone; (vi) formulating or providing, or arranging for the formulation or provision of, any script or any other material for communicating with customers or potential customers; or (vii) providing any other substantial help or aid. 2. “ Cal ler identification service ” means a service that allows a telephone subscriber to have the telephone number, and, where available, name of the calling party transmitted contemporaneously with the telephone call, and displayed on a device in or connected to the subscriber = s telephone. 3. “ Charitable contribution ” means any donation or gift of money or any other thing of value. 4. “ Defendant ” means Skyy Consulting, Inc., whether doing business as “ CallFire ” or “ CallFire ” or under any other name, and its successors and assigns. 5. “ Do Not Call request ” means a statement by a person that indicates that he or she does not wish to receive telephone calls initiated to induce the purchase of goods or services or to solicit charita ble contributions. [Proposed] Stipulated Order for Permanent Injunction and Civil Penalty Judgment, p. 3 Case4:13-cv-02136-DMR Document3 Filed05/13/13 Page3 of 28 6. “ Established business relationship ” means a relationship between the seller and a person based on: (a) the person = s purchase, rental, or lease of the seller = s goods or services or a financial transaction between the person and seller, w ithin the eighteen (18) months immediately preceding the date of the telemarketing call; or (b) the person ’ s inquiry or application regarding a product or service offered by the seller, within the three (3) months immediately preceding the date of a telemarketing call. 7. “National Do Not Call Registry” means the National Do Not Call Registry, which is the “do-not- call ” registry maintained by the Commission pursuant to 16 C.F.R. § 310.4(b)(1)(iii)(B). 8. “ Outbound telephone call ” means a telephone call initiated by a telemarketer to induce the purchase of goods or services or to solicit a charitable contribution. 9. “ Person ” means any individual, group, unincorporated association, limited or general partnership, corporation, or other business entity. 10. “ Representatives ” means Defendant ’s officers, agents, servants, employees, attorneys, and those persons in active concert or participation with them who receive actual notice of this Order by personal service or otherwise. 11. “ Seller ” means any person who, in connection with a telemarketing transaction, provides, offers to provide, or arranges for others to provide goods or services to the customer in exchange for consideration, whether or not such person is under the jurisdiction of t he Commission. 12. “ Subscriber ” means any person who, for consideration, authorizes Defendant or its Representatives to initiate, or arranges for Defendant or its Representatives to assist [Proposed] Stipulated Order for Permanent Injunction and Civil Penalty Judgment, p. 4 Case4:13-cv-02136-DMR Document3 Filed05/13/13 Page4 of 28 others in initiating, multiple telephone calls for the purpose of deliv ering prerecorded messages, but does not include a person who purchases the right to use software and receives no other good or service from Defendant. 13. “ Telemarketer ” means any person who, in connection with telemarketing, initiates or receives telephone c alls to or from a customer or donor. 14. “ Telemarketing ” means a plan, program, or campaign which is conducted to induce the purchase of goods or services or a charitable contribution, by use of one or more telephones and which involves more than one interstat e telephone call. Telemarketing does not include the solicitation of sales through the mailing of a catalog. 15. “ Telemarketing Sales Rule ” means the Commission rule titled “ Telemarketing Sales Rule, ” 16 C.F.R. Part 310, attached as Appendix A. ORDE R I. PROHIBITION AGAINST ILLEGAL TELEMARKETING PRACTICES IT IS ORDERED that, in connection with telemarketing, Defendant and its Representatives, whether acting directly or through any entity, corporation, subsidiary, division, affili ate, or other device, are permanently restrained and enjoined from engaging in, causing others to engage in, or assisting other persons to engage in: A. Initiating any outbound telephone call that delivers a prerecorded message to induce the purchase of an y good or service unless, prior to making any such call, the seller has obtained from the recipient of the call an express agreement, in writing, that: [Proposed] Stipulated Order for Permanent Injunction and Civil Penalty Judgment, p. 5 Case4:13-cv-02136-DMR Document3 Filed05/13/13 Page5 of 28 1. the seller obtained only after a clear and conspicuous disclosure that the purpose of the agreement is to authorize the seller to place prerecorded calls to such person; 2. the seller obtained without requiring, directly or indirectly, that the agreement be executed as a condition of purchasing any good or service; 3. evidences the willingness of the recipient of the call to receive calls that deliver prerecorded messages by or on behalf of a specific seller; and 4. includes such person = s telephone number and signature; and B. Violations of the Telemarketing Sales Rule, 16 C.F.R. Part 310, attached as Appendix A; Provided, however, that the requirements of this section do not apply to the solicitation of sales by mailing a catalog. II. TERMINATION OF NONCOMPLIANT SUBSCRIBERS IT IS FURTHER ORDERED that: A. Defendant shall, within one hundred and twenty (120) days of the date of entry of this Order, review messages that its current subscribers deliver to Defendant or its Representatives and, for each subscriber that delivers a message to businesses or consumers that promotes the purchase of goods or services or solicits charitable contributions, Defendant or its Representatives shall, within one hundred and twenty (120) days of the date of entry of this Order: 1. Provide, electronically or otherwise, the subscriber with: (i) a copy of this Order, including Appendix A; and (ii) a written notice stating that the use of Defendant = s [Proposed] Stipulated Order for Permanent Injunction and Civil Penalty Judgment, p. 6 Case4:13-cv-02136-DMR Document3 Filed05/13/13 Page6 of 28 services to cause the initiation of telephone calls that do not comply with this Order will result in immediate termination of services; and 2. Obtain from each such subscriber an electronic acknowledgment or other signed and dated statement acknowledging receipt of this Order and the written notice concerning immediate termination of services. B. Prior to commencing services that assist subscri bers or prospective subscribers in delivering a message to businesses or consumers that was not reviewed under Subparagraph A, Defendant shall review the message and, if the message promotes the purchase of goods or services or solicits charitable contributions and the subscriber or proposed subscriber seeking to deliver the messages has not previously provided a statement acknowledging receipt of this Order, Defendant or its Representatives shall: 1. Provide, electronically or otherwise, each such su bscriber or prospective subscriber with: (i) a copy of this Order, including Appendix A; and (ii) a written notice stating that the use of Defendant = s services to cause the initiation of telephone calls that do not comply with this Order will result in imm ediate termination of services; and 2. Obtain from each such subscriber or prospective subscriber an electronic acknowledgment or other signed and dated statement acknowledging receipt of this Order and the written notice concerning immediate termination of s ervices. C. Defendant shall: [Proposed] Stipulated Order for Permanent Injunction and Civil Penalty Judgment, p. 7 Case4:13-cv-02136-DMR Document3 Filed05/13/13 Page7 of 28 1. Terminate services to any subscriber immediately upon discovering that a subscriber has used the services of Defendant or its Representatives to initiate or cause the initiation of telephone calls that do not comply with this Order; 2. Refuse to provide services to any prospective subscriber if such services would assist or support the initiation of telephone calls that do not comply with this Order; and 3. Provide, electronically or otherwise, a copy of this Order (including Appendi x A) to any person that purchases the right to use software Defendant = s services to initiate telephone calls to deliver prerecorded messages and receives no other good or service from Defendant. III. MONETARY JUDGMENT FOR CIVIL PENALTY IT IS FURTHER ORDERED that: A. Judgment in the amount of Seventy-five Thousand Dollars ($75,000) is entered in favor of Plaintiff against Defendant as a civil penalty. B. Defendant is ordered to pay to Plaintiff, by making payment to the Treasurer of the United States, Seventy - five Thousand Dollars ($75,000), which, as Defendant stipulates, its undersigned counsel holds in escrow for no purpose other than payment to Plaintiff. Such payment must be made within 7 days of entry of this Order by electronic fund transfer in accordance wi th instructions previously provided by a representative of Plaintiff. C. Defendant 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. [Proposed] Stipulated Order for Permanent Injunction and Civil Penalty Judgment, p. 8 Case4:13-cv-02136-DMR Document3 Filed05/13/13 Page8 of 28 D. The fac ts 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 . E. Defe ndant agrees that the judgment represents a civil penalty owed to the government of the United States and is not compensation for actual pecuniary loss. IV. ORDER ACKNOWLEDGMENTS IT IS FURTHER ORDERED that Defendant obtain acknowledgments of receipt of this Order: A. The Defendant, within 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 10 years after entry of this Order, Defendant must deliver a copy of thi s Order to: (1) all principals, officers, directors, and managers; (2) all employees, agents, and representatives who participate in assisting or facilitating telemarketing; and (3) any business entity resulting from any change in structure as set forth in the Section titled Compliance Reporting. Delivery must occur within 7 days of entry of this Order for current personnel. To all others, delivery must occur before they assume their responsibilities. C. From each individual or entity to which a Defendant delivered a copy of this Order, that Defendant must obtain, within 30 days, a signed and dated acknowledgment of receipt of this Order. [Proposed] Stipulated Order for Permanent Injunction and Civil Penalty Judgment, p. 9 Case4:13-cv-02136-DMR Document3 Filed05/13/13 Page9 of 28 V. COMPLIANCE REPORTING IT IS FURTHER ORDERED that Defendant make timely submissions to the Commission: A. One year after entry of this Order, the Defendant must submit a compliance report, sworn under penalty of perjury. The Defendant must: (a) designate at least one telephone number and an email, physical, and postal address as points of contact, which repre sentatives of the Commission and Plaintiff may use to communicate with Defendant; (b) identify all of that Defendant = s businesses by all of their names, telephone numbers, and physical, postal, email, and Internet addresses; (c) describe the activities of each business, including the products and services offered, the means of advertising, marketing, and sales; (d) describe in detail whether and how the Defendant is in compliance with each Section of this Order; and (e) provide a copy of each Order Acknowledgment obtained pursuant to this Order, unless previously submitted to the Commission; B. For 10 years following entry of this Order, the Defendant must submit a compliance notice, sworn under penalty of perjury, within 14 days of any change in the follow ing: . 1. any designated point of contact; or 2. the structure of the Defendant any entity that Defendant has any ownership interest in or directly or indirectly controls that may affect compliance obligations arising under this Order, including: creation, merger, sale, or dissolution of the entity or any subsidiary, parent, or affiliate that engages in any acts or practices subject to this Order. C. The Defendant must submit to the Commission notice of the filing of any [Proposed] Stipulated Order for Permanent Injunction and Civil Penalty Judgment, p. 10 Case4:13-cv-02136-DMR Document3 Filed05/13/13 Page10 of 28 bankruptcy petition, insolvency proceeding, or any similar proceeding by or against the Defendant within 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 [email protected] 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: United States v. Skyy Consulting, Inc., also d/b/a CallFire , matter no. 1223011. VI. RECORDKEEPING IT IS FURTHER ORDERED that Defendant must create certain records for 10 years after entry of the Order, and retain each such record for 5 years. Specifically, Defendant, in connection with assisting or facilitating telemarketing, must maintain the following records: A. Accounting records showing the revenues from all goods or services sold, all costs incurred in generating those revenues, and the resulting net profit or loss; B. Personnel records showing, for each person providing services, whether as an emp loyee or otherwise, that person = s: name, addresses, and telephone numbers; job title or position; dates of service; and, if applicable, the reason for termination; [Proposed] Stipulated Order for Permanent Injunction and Civil Penalty Judgment, p. 11 Case4:13-cv-02136-DMR Document3 Filed05/13/13 Page11 of 28 C. Records of all consumer complaints and refund requests, whether received directly or in directly, such as through a third party, and any response; and D. All records necessary to demonstrate full compliance with each provision of this Order, including all submissions to the Commission. VII. COMPLIANCE MONITORING IT IS FURTHER ORDERED that, for the purpose of monitoring Defendant = s compliance with this Order, including any failure to transfer any assets as required by this Order: A. Within 14 days of receipt of a written request from a representative of the Commission or Plaintiff, Defen dant 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 and Plaintiff are also authorized to ob tain 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 and Plaintiff are authorized to communicate directly with Defendant through undersigned counsel. If such counsel no longer represents the Defendant, the Commission and Plaintiff are authorized to communicate directly with such Defendant. Defendant must permit repr esentatives of the Commission and Plaintiff to interview any employee or other person affiliated with any Defendant who has agreed to such an interview. The person interviewed may have counsel present. C. The Commission and Plaintiff may use all other la wful 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 [Proposed] Stipulated Order for Permanent Injunction and Civil Penalty Judgment, p. 12 Case4:13-cv-02136-DMR Document3 Filed05/13/13 Page12 of 28 notice. Nothing in t his 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. VIII. RETENTION OF JURISDICTION IT IS FURTHER ORDERED that this Court retains jurisdiction of this matter for purposes of construction, modification, and enforcement of this Order. JUDGMENT IS THEREFORE ENTERED in favor of Plaintiff and against Defendant, pursuant to all the terms and conditions recited above. SO ORDERED this day of , 20___. _______________________________ UNITED STATES DISTRICT JUDGE SO STIPULATED AND AGREED: FOR THE PLAINTIFF: FOR THE UNITED STATES OF AMERICA STUART F. DELERY Acting Assistant Attorney General, Civil Division MAAME EWUSI - MENSAH FRIMPONG Deputy Assistant Attorney General, Civil Division MICHAEL S. BLUME Director, Consumer Protection Branch Civil Division U.S. Department of Justice /s Richard Goldberg____________ RI CHARD GOLDBERG, Assistant Director Consumer Protection FOR THE FEDERAL TRADE COMMISSION: J EFFREY KLURFELD Director, Western Region FEDERAL TRADE COMMISSION Kenneth H. Abbe David Newman Federal Trade Commission 901 Market St., Ste. 570 San Francisco, CA 94103 U.S. Department of Justice P.O. Box 386 Washington, D.C. 20044 PHONE: 202-307-2532 FAX: 202 -514-8742 [email protected] [Proposed] Stipulated Order for Permanent Injunction and Civil Penalty Judgment, p. 13 Case4:13-cv-02136-DMR Document3 Filed05/13/13 Page13 of 28 FOR DEFENDANT: 1 /s Dinesh Ravishanker________ Skyy Consulting, Inc., also d/b/a CallFire, by its CEO/Founder /s Michael Hazzard ___________ Michael B. Hazzard, Esq. Arent Fox LLP 1717 K Street, N.W. Washington, DC 20036-5342 (202) 857-6029 Counsel for Defendant Date: 12/10/12 Date: 12/10/12 1 Signed version of Consent Decree with Defendant and Defense Counsel signatures are on file with Plaintiff. [Proposed] Stipulated Order for Permanent Injunction and Civil Penalty Judgment, p. 14 Case4:13-cv-02136-DMR Document3 Filed05/13/13 Page14 of 28
Posted on: Fri, 26 Sep 2014 21:40:35 +0000
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