`
`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`
`
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`FEDERAL TRADE COMMISSION,
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` Plaintiff,
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` v.
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`WELLCO, INC., a corporation, and
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`GEORGE M. MOSCONE, individually and as an
`officer of WELLCO, INC.,
`
`
` Defendants.
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`
`
`
`
`
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`Case No. 1:21-cv-02081-MKV
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`STIPULATED ORDER FOR
`PERMANENT INJUNCTION AND
`MONETARY JUDGMENT
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`Plaintiff, the Federal Trade Commission (“Commission” or “FTC”), filed its Complaint
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`For Permanent Injunction And Other Equitable Relief (“Complaint”), for a permanent injunction,
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`and other equitable relief in this matter, pursuant to Section 13(b) of the Federal Trade
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`Commission Act (“FTC Act”), 15 U.S.C. § 53(b). The Commission and Defendants stipulate to
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`the entry of this Stipulated Order for Permanent Injunction and Monetary Judgment (“Order”) to
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`resolve all matters in dispute in this action between them.
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`THEREFORE, IT IS ORDERED as follows:
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`This Court has jurisdiction over this matter.
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`FINDINGS
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`The Complaint alleges that Defendants participated in deceptive acts or practices in
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`1.
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`2.
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`violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), in connection with the advertising,
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`marketing, distribution, and sale of television antennas and related amplifiers.
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`3.
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`Defendants neither admit nor deny any of the allegations in the Complaint, except as
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`Page 1 of 14
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`Case 1:21-cv-02081-MKV Document 7-1 Filed 03/12/21 Page 2 of 14
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`specifically stated in this Order. Only for purposes of this action, Defendants admit the facts
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`necessary to establish jurisdiction.
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`4.
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`Defendants waive any claim that they may have under the Equal Access to Justice Act, 28
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`U.S.C. § 2412, concerning the prosecution of this action through the date of this Order, and agree
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`to bear their own costs and attorney fees.
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`5.
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`Defendants waive all rights to appeal or otherwise challenge or contest the validity of this
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`Order.
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`DEFINITIONS
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`For the purpose of this Order, the following definitions apply:
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`A.
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`“Competent and Reliable Evidence” means tests, analyses, research, studies, or other
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`evidence based on the expertise of professionals in the relevant area, that (1) have been conducted
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`and evaluated in an objective manner by qualified persons and (2) are generally accepted in the
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`profession to yield accurate and reliable results.
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`B.
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`“Defendants” means the Individual Defendant and the Corporate Defendant, individually,
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`collectively, or in any combination.
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`1.
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`2.
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`“Corporate Defendant” means Wellco, Inc. and its successors and assigns.
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`“Individual Defendant” means George M. Moscone.
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`ORDER
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`I.
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`PROHIBITION AGAINST MISLEADING CLAIMS
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`IT IS ORDERED that Defendants, Defendants’ officers, agents, employees, and attorneys,
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`and all other persons in active concert or participation with any of them, who receive actual notice
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`of this Order, whether acting directly or indirectly, in connection with the labeling, advertising,
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`Page 2 of 14
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`Case 1:21-cv-02081-MKV Document 7-1 Filed 03/12/21 Page 3 of 14
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`promotion, offering for sale, sale, or distribution of any product, are permanently restrained and
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`enjoined from making, or assisting others in making, expressly or by implication, including
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`through the use of a product name, endorsement, depiction, or illustration, any representation,
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`about:
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`A.
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`the product’s absolute or relative ratings or ranking, or the product’s superiority to
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`other products;
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`B.
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`the channels, cable channels, subscription channels, favorite channels, premium
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`channels, or clear channels users of the product can or will likely receive, including the
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`number of such channels users can or will likely receive; or
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`C.
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`any material aspect of the product’s performance, efficacy, nature, or central
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`characteristics,
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`unless the representation is non-misleading, including that, at the time such representation is
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`made, Defendants possess and rely upon competent and reliable evidence that is sufficient in
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`quality and quantity based on standards generally accepted in the relevant fields when considered
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`in light of the entire body of relevant and reliable evidence, to substantiate that the representation
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`is true.
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`II.
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`PROHIBITION AGAINST FALSE CLAIMS
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`IT IS FURTHER ORDERED that Defendants, Defendants’ officers, agents, employees,
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`and attorneys, and all other persons in active concert or participation with any of them, who
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`receive actual notice of this Order, whether acting directly or indirectly, in connection with the
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`labeling, advertising, promotion, offering for sale, sale, or distribution of any product, are
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`permanently restrained and enjoined from making, or assisting others in making, any
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`Page 3 of 14
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`Case 1:21-cv-02081-MKV Document 7-1 Filed 03/12/21 Page 4 of 14
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`misrepresentation, expressly or by implication:
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`A.
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`that any endorsement is a truthful endorsement or by an actual user of such
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`product;
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`B.
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`C.
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`D.
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`E.
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`through the use of any endorsement of such product;
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`that any website or other publication is an objective news report;
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`that objective news reporters have performed independent tests of any product; or
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`that independent tests demonstrate the effectiveness of any product.
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`III. MONETARY JUDGMENT AND PARTIAL SUSPENSION
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`IT IS FURTHER ORDERED that:
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`A.
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`Judgment in the amount of 31.82 Million Dollars ($31,820,000) is entered in favor of the
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`Commission against Individual Defendant and Corporate Defendant, jointly and severally, as
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`equitable monetary relief.
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`B.
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`Defendants are ordered to pay to the Commission Six Hundred Fifty Thousand Dollars
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`($650,000), which, as Defendants stipulate, their undersigned counsel holds in escrow for no
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`purpose other than payment to the Commission. Such payment must be made within 7 days of
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`entry of this Order by electronic fund transfer in accordance with instructions previously provided
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`by a representative of the Commission. Upon such payment, the remainder of the judgment is
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`suspended, subject to the Subsections below.
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`C.
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`The Commission’s agreement to the suspension of part of the judgment is expressly
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`premised upon the truthfulness, accuracy, and completeness of Defendants’ sworn financial
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`statements and related documents (collectively, “financial representations”) submitted to the
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`Commission, namely:
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`Page 4 of 14
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`Case 1:21-cv-02081-MKV Document 7-1 Filed 03/12/21 Page 5 of 14
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`1.
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`the Financial Statement of Individual Defendant, George M. Moscone, signed on
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`July 27, 2020, including the attachments;
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`2.
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`the Financial Statement of Corporate Defendant, Wellco, Inc., signed by George
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`M. Moscone, President, CEO, and owner on July 27, 2020, including the attachments;
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`3.
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`the following additional documentation submitted by Defendants’ counsel to
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`Commission counsel, Michael Ostheimer and Carl Settlemyer:
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`a.
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`Letter attachment to email dated August 21, 2020 from Ari Rothman and
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`the documents referenced therein, including the loan agreement and those in the
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`“Docs for Closing” ZIP file;
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`b.
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`Letter attachment to email dated September 2, 2020, from Shahin
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`Rothermel and accompanying document titled “2019 Estimated Tax (Moscone)”;
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`c.
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`Email from Ari Rothman dated October 27, 2020 (5:12pm), and the
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`attachment thereto;
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`d.
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`e.
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`Email from Ari Rothman dated November 9, 2020; and
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`Email from Ari Rothman dated December 10, 2020 (5:26pm).
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`D.
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`The suspension of the judgment will be lifted as to any Defendant if, upon motion by the
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`Commission, the Court finds that Defendant failed to disclose any material asset, materially
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`misstated the value of any asset, or made any other material misstatement or omission in the
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`financial representations identified above.
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`E.
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`If the suspension of the judgment is lifted, the judgment becomes immediately due as to
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`that Defendant in the amount specified in Subsection A above (which the parties stipulate only for
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`purposes of this Section represents the consumer injury alleged in the Complaint), less any
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`Page 5 of 14
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`Case 1:21-cv-02081-MKV Document 7-1 Filed 03/12/21 Page 6 of 14
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`payment previously made pursuant to this Section, plus interest computed from the date of entry
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`of this Order.
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`IV. ADDITIONAL MONETARY PROVISIONS
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`IT IS FURTHER ORDERED that:
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`A.
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`Defendants relinquish dominion and all legal and equitable right, title, and interest in all
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`assets transferred pursuant to this Order and may not seek the return of any assets.
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`B.
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`The facts alleged in the Complaint will be taken as true, without further proof, in any
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`subsequent civil litigation by or on behalf of the Commission, including in a proceeding to
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`enforce its rights to any payment or monetary judgment pursuant to this Order, such as a
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`nondischargeability complaint in any bankruptcy case.
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`C.
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`The facts alleged in the Complaint establish all elements necessary to sustain an action
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`by the Commission pursuant to Section 523(a)(2)(A) of the Bankruptcy Code, 11 U.S.C.
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`§ 523(a)(2)(A), and this Order will have collateral estoppel effect for such purposes.
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`D.
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`Defendants acknowledge that their Taxpayer Identification Numbers (Social Security
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`Numbers or Employer Identification Numbers), which Defendants previously submitted to the
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`Commission, may be used for collecting and reporting on any delinquent amount arising out of
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`this Order, in accordance with 31 U.S.C. § 7701.
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`E.
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`All money paid to the Commission pursuant to this Order may be deposited into a fund
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`administered by the Commission or its designee to be used for equitable relief, including
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`consumer redress and any attendant expenses for the administration of any redress fund. If a
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`representative of the Commission decides that direct redress to consumers is wholly or partially
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`impracticable or money remains after redress is completed, the Commission may apply any
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`Page 6 of 14
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`Case 1:21-cv-02081-MKV Document 7-1 Filed 03/12/21 Page 7 of 14
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`remaining money for such other equitable relief (including consumer information remedies) as it
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`determines to be reasonably related to Defendants’ practices alleged in the Complaint. Any
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`money not used for such equitable relief is to be deposited to the U.S. Treasury as disgorgement.
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`Defendants have no right to challenge any actions the Commission or its representatives may take
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`pursuant to this Subsection.
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`V. CUSTOMER INFORMATION
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`IT IS FURTHER ORDERED that Defendants, Defendants’ officers, agents, employees,
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`and attorneys, and all other persons in active concert or participation with any of them, who
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`receive actual notice of this Order are permanently restrained and enjoined from directly or
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`indirectly:
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`A.
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`failing to provide sufficient customer information to enable the Commission to efficiently
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`administer consumer redress. If a representative of the Commission requests in writing any
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`information related to redress, Defendants must provide it, in the form prescribed by the
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`Commission, within 14 days.
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`B.
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`disclosing, using, or benefitting from customer information, including the name, address,
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`telephone number, email address, social security number, other identifying information, or any
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`data that enables access to a customer’s account (including a credit card, bank account, or other
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`financial account), that any Defendant obtained prior to entry of this Order in connection with
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`labeling, advertising, marketing, distribution, or sale of television antennas or amplifiers; and
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`C.
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`failing to destroy such customer information in all forms in their possession, custody, or
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`control within 30 days after receipt of written direction to do so from a representative of the
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`Commission.
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`Page 7 of 14
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`Case 1:21-cv-02081-MKV Document 7-1 Filed 03/12/21 Page 8 of 14
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`Provided, however, that customer information need not be disposed of, and may be
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`disclosed, to the extent requested by a government agency or required by law, regulation, or court
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`order.
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`Order:
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`VI.
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`ORDER ACKNOWLEDGMENTS
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`IT IS FURTHER ORDERED that Defendants obtain acknowledgments of receipt of this
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`A.
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`Each Defendant, within 7 days of entry of this Order, must submit to the Commission an
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`acknowledgment of receipt of this Order sworn under penalty of perjury.
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`B.
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`For 5 years after entry of this Order, Individual Defendant for any business that
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`such Defendant, individually or collectively with any other Defendants, is the majority owner or
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`controls directly or indirectly, and Corporate Defendant, must deliver a copy of this Order to: (1)
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`all principals, officers, directors, and LLC managers and members; (2) all employees having
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`managerial responsibilities for conduct related to the subject matter of the Order and all agents
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`and representatives who participate in conduct related to the subject matter of the Order; and (3)
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`any business entity resulting from any change in structure as set forth in the Section titled
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`Compliance Reporting. Delivery must occur within 7 days of entry of this Order for current
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`personnel. For all others, delivery must occur before they assume their responsibilities.
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`C.
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`From each individual or entity to which a Defendant delivered a copy of this Order, that
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`Defendant must obtain, within 30 days, a signed and dated acknowledgment of receipt of this
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`Order.
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`VII. COMPLIANCE REPORTING
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`IT IS FURTHER ORDERED that Defendants make timely submissions to the
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`Page 8 of 14
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`Case 1:21-cv-02081-MKV Document 7-1 Filed 03/12/21 Page 9 of 14
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`Commission:
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`A.
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`One year after entry of this Order, each Defendant must submit a compliance report,
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`sworn under penalty of perjury:
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`1.
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`Each Defendant must: (a) identify the primary physical, postal, and email address
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`and telephone number, as designated points of contact, which representatives of the
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`Commission may use to communicate with Defendant; (b) identify all of that Defendant’s
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`businesses by all of their names, telephone numbers, and physical, postal, email, and
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`Internet addresses; (c) describe the activities of each business, including the goods and
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`services offered, the means of advertising, marketing, and sales, and the involvement of
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`any other Defendant (which Individual Defendant must describe if he knows or should
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`know due to his own involvement); (d) describe in detail whether and how that Defendant
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`is in compliance with each Section of this Order; and (e) provide a copy of each Order
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`Acknowledgment obtained pursuant to this Order, unless previously submitted to the
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`Commission.
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`2.
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`Additionally, Individual Defendant must: (a) identify all telephone numbers and
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`all physical, postal, email and Internet addresses, including all residences; (b) identify all
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`business activities, including any business for which such Defendant performs services
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`whether as an employee or otherwise and any entity in which such Defendant has any
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`ownership interest; and (c) describe in detail such Defendant’s involvement in each such
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`business, including title, role, responsibilities, participation, authority, control, and any
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`ownership.
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`B.
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`For 10 years after entry of this Order, each Defendant must submit a compliance
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`Page 9 of 14
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`Case 1:21-cv-02081-MKV Document 7-1 Filed 03/12/21 Page 10 of 14
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`notice, sworn under penalty of perjury, within 14 days of any change in the following:
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`1.
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`Each Defendant must report any change in: (a) any designated point of contact; or
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`(b) the structure of any Corporate Defendant or any entity that Defendant has any
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`ownership interest in or controls directly or indirectly that may affect compliance
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`obligations arising under this Order, including: creation, merger, sale, or dissolution of
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`the entity or any subsidiary, parent, or affiliate that engages in any acts or practices subject
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`to this Order.
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`2.
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`Additionally, Individual Defendant must report any change in: (a) name,
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`including aliases or fictitious name, or residence address; or (b) title or role in any
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`business activity, including any business for which such Defendant performs services
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`whether as an employee or otherwise and any entity in which such Defendant has any
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`ownership interest, and identify the name, physical address, and any Internet address of
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`the business or entity.
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`C.
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`Each Defendant must submit to the Commission notice of the filing of any bankruptcy
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`petition, insolvency proceeding, or similar proceeding by or against such Defendant within 14
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`days of its filing.
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`D.
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`Any submission to the Commission required by this Order to be sworn under penalty of
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`perjury must be true and accurate and comply with 28 U.S.C. § 1746, such as by concluding: “I
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`declare under penalty of perjury under the laws of the United States of America that the foregoing
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`is true and correct. Executed on: _____” and supplying the date, signatory’s full name, title (if
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`applicable), and signature.
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`E.
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`Unless otherwise directed by a Commission representative in writing, all submissions to
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`Page 10 of 14
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`Case 1:21-cv-02081-MKV Document 7-1 Filed 03/12/21 Page 11 of 14
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`the Commission pursuant to this Order must be emailed to DEbrief@ftc.gov or sent by overnight
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`courier (not the U.S. Postal Service) to: Associate Director for Enforcement, Bureau of
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`Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington,
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`DC 20580. The subject line must begin: FTC v. Wellco, Inc.
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`VIII. RECORDKEEPING
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`IT IS FURTHER ORDERED that Defendants must create certain records for 10 years
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`after entry of the Order, and retain each such record for 5 years. Specifically, Corporate
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`Defendant in connection with any activity subject to this Order and Individual Defendant for any
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`business that such Defendant, individually or collectively with any other Defendants, is a majority
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`owner or controls directly or indirectly, must create and retain the following records:
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`A.
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`B.
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`accounting records showing the revenues from all goods or services sold;
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`personnel records showing, for each person providing services, whether as an employee or
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`otherwise, that person’s: name; addresses; telephone numbers; job title or position; dates of
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`service; and (if applicable) the reason for termination;
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`C.
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`records of all consumer complaints and refund requests concerning the subject matter of
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`this Order, whether received directly or indirectly, such as through a third party, and any
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`response;
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`D.
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`all records necessary to demonstrate full compliance with each provision of this Order,
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`including all submissions to the Commission; and
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`E.
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`a copy of each unique advertisement or other marketing material.
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`IX. COMPLIANCE MONITORING
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`IT IS FURTHER ORDERED that, for the purpose of monitoring Defendants’ compliance
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`Page 11 of 14
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`Case 1:21-cv-02081-MKV Document 7-1 Filed 03/12/21 Page 12 of 14
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`with this Order, including any failure to transfer any assets as required by this Order:
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`A. Within 14 days of receipt of a written request from a representative of the Commission
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`each Defendant must: submit additional compliance reports or other requested information,
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`which must be sworn under penalty of perjury; appear for depositions; and produce documents for
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`inspection and copying. The Commission is also authorized to obtain discovery, without further
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`leave of court, using any of the procedures prescribed by Federal Rules of Civil Procedure 29, 30
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`(including telephonic depositions), 31, 33, 34, 36, 45, and 69.
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`B.
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`For matters concerning this Order, the Commission is authorized to communicate directly
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`with each Defendant. Defendant must permit representatives of the Commission to interview
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`any employee or other person affiliated with any Defendant who has agreed to such an interview.
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`The person interviewed may have counsel present.
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`C.
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`The Commission may use all other lawful means, including posing, through its
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`representatives as consumers, suppliers, or other individuals or entities, to Defendants or any
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`individual or entity affiliated with Defendants, without the necessity of identification or prior
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`notice. Nothing in this Order limits the Commission’s lawful use of compulsory process,
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`pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b-1.
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`D.
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`Upon written request from a representative of the Commission, any consumer reporting
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`agency must furnish consumer reports concerning Individual Defendant, pursuant to Section
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`604(1) of the Fair Credit Reporting Act, 15 U.S.C. §1681b(a)(1).
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`X. RETENTION OF JURISDICTION
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`IT IS FURTHER ORDERED that this Court retains jurisdiction of this matter for purposes
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`of construction, modification, and enforcement of this Order.
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`Page 12 of 14
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`Case 1:21-cv-02081-MKV Document 7-1 Filed 03/12/21 Page 13 of 14
`Case 1:21-cv-02081—MKV Document 7-1 Filed 03/12/21 Page 13 of 14
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`X.
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`RETENTION OF JURISDICTION
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`IT IS FURTHER ORDERED that this Court retains jurisdiction of this matter for purposes
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`of construction, modification, and enforcement of this Order.
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`SO ORDERED this
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`day of
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`,
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`UNITED STATES DISTRICT JUDGE
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`SO STIPULATED AND AGREED:
`
`FOR PLAINTIFF:
`
`FEDERAL TRADE COMMISSION
`
`Wow
`
`
`
`Michael Ostheimer, Attorney
`Federal Trade Commission
`
`Washington, DC 20580
`202-326-2699 (telephone)
`202-326-3259 (fax)
`mostheimer@ftc . gov
`
`WW
`
`
`
`Carl Settlemyer, Attorney
`Federal Trade Commission
`
`Washington, DC 20580
`202-326-2019 (telephone)
`202-326-3259 (fax)
`csettlemyer@fic.gov
`
`FOR DEFENDANTS:
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`jM Date:
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`‘
`
`(My- _
`
`1/22/2021
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`Ari N. Rothman, Esq.
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`Page 13 of 14
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`1/22/2021
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`Case 1:21-cv-02081-MKV Document 7-1 Filed 03/12/21 Page 14 of 14
`Case 1:21-cv-02081—MKV Document 7-1 Filed 03/12/21 Page 14 of 14
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`Venable LLP
`
`600 Massachusetts Avenue, NW
`Washington, DC 20001
`(202) 344-4220 (telephone)
`(646) 927-5599 (fax)
`ANRothman@Venable.com
`Counsel for Wellco, Inc., and George M. Moscone
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`DEFENDANTS: Wellco, Inc., and George M. Moscone
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`- 41/” tM Date:
`George M. Moscone, Individually
`and as an Officer of Wellco, Inc.
`
`(ZKMQQZ 9-1
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`Page 14 of 14
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