The opinion of the court was delivered by: Honorable Dean D. Pregerson United States District Judge
STIPULATED FINAL ORDER FOR INJUNCTIONS AND OTHER
Plaintiff, the Federal Trade Commission ("FTC" or "Commission"), filed its Complaint for Permanent Injunction and Other Equitable Relief in this matter on July 20, 2009, pursuant to Section 13(b) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 53(b). A stipulated Preliminary Injunction was entered September 25, 2009. The parties now stipulate to the entry of a final order resolving this case as follows: FINDINGS:
1. Defendants have marketed and sold various consumer electronic goods to consumers in the United Kingdom ("UK") via Internet websites which use "co.uk" names, and which state prices in pounds sterling;
2. The Complaint states claims upon which relief may be granted against Defendants, under Section 5 the FTC Act, 15 U.S.C. § 45, and under the Commission's Trade Regulation Rule Concerning the Sale of Mail or Telephone Order Merchandise ("Mail Order Rule") 16 C.F.R. Part 435.
3. This Court has jurisdiction of the subject matter of the case and over all named parties;
4. Venue is proper as to all parties in this District; 5. The Defendants' activities are "in or affecting commerce" as defined in Section 4 of the FTC Act, 15 U.S.C. § 44.
6. Defendants waive all rights to seek judicial review or otherwise challenge or appeal the validity of this Order. Defendants also waive any claim they may have held under the Equal Access to Justice Act, 28 U.S.C. § 2412, concerning the prosecution of this action to the date of this Order;
7. The Commission and Defendants stipulate and agree to entry of this Order under Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), without trial or final adjudication of any issue of fact or law. By entering into this stipulation, Defendants do not admit or deny any of the allegations set forth in the Complaint, other than jurisdictional facts, and as otherwise specifically stated in this Order;
8. This action and the relief awarded herein are in addition to, and not in lieu of, other remedies as may be provided by law;
9. Nothing in this Order obviates the obligation of Defendants to comply with Sections 5 and 12 of the FTC Act, 15 U.S.C. §§ 45 and 52;
10. The Commission's action against Defendants is an exercise of the Commission's police or regulatory power as a governmental unit;
11. The paragraphs of this Order shall be read as the necessary requirements for compliance and not as alternatives for compliance, and no paragraph serves to modify another paragraph unless expressly so stated;
12. Each party shall bear its own costs and attorneys' fees; and,
13. Entry of this Order is in the public interest, there is just cause for this Order to be entered, and this Order is authorized by Section § 13(b) of the Federal Trade Commission Act, 15 U.S.C. § 53(b).
1. "Defendants" means Balls of Kryptonite, Intrigue, Inc., and Jaivin Karnani, acting directly or through any other individual or legal entity, or doing business as Bite Size Deals, Best Priced Brands, Crazy Cameras, and Specialty Software.
2. "Commerce" means as defined in Section 4 of the FTC Act, 15 U.S.C. § 44.
3. "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.
4. "Person" means a natural person, an organization or other legal entity, including a corporation, partnership, sole proprietorship, limited liability company, association, cooperative, or any other group of combination acting as an entity.
5. A "Website" means a set of electronic files or documents, usually a home page and subordinate pages, readily viewable on a computer by anyone with access to the Internet and standard Internet browser software.
6. "Document" is synonymous in meaning and equal in scope to the term as defined in Federal Rule of Civil Procedure 34(a), and includes writings, drawings, graphs, charts, photographs, audio and video recordings, computer records, and any other data compilation from which information can be obtained and translated, if necessary, into reasonably usable form through detection devices. A draft or non-identical copy is a separate document within the meaning of this term.
7. "Customer," "consumer," or "buyer" means any person who has
or may be required to pay, for products or services offered for sale
or sold by the Defendants.
8. "Card holder" means any consumer who uses a credit or debit card to purchase goods or services.
9. "Chargeback" means any request by a card holder or a card issuer to reverse a disputed purchase or charge.
PROHIBITED BUSINESS ACTIVITIES
IT IS HEREBY ORDERED that Defendants and their successors, assigns, officers, agents, servants, employees, and attorneys, and those persons or entities in active concert or participation with any of them who receive actual notice of this Order by personal service, facsimile transmission, email, or otherwise, whether acting directly or through any corporation, subsidiary, division, trade name, or other device, in connection with the advertising, marketing, promotion, offering for sale or sale of any goods or services, in or affecting commerce, are hereby restrained and enjoined from misrepresenting, or from assisting others in misrepresenting, expressly or by implication, any of the following:
A. Defendants' location, including but not limited to any misrepresentation that Defendants are physically located in or operate from the United Kingdom or European Union;
B. The qualities, quantities, or characteristics, of any goods sold, including color, brand, or model name or number;
C. The existence and/or validity of any manufacturers' warranty;
D. The total price for goods sold;
E. The extent to which Defendants are members of, adhere to, comply with, are certified by, are endorsed by, or otherwise participate in any privacy, security, or any other compliance program sponsored by any government or third party; or,
F. Defendants' policies concerning cancellation, exchange, or refund. BAN ON USE OF FOREIGN WEBSITE DESIGNATIONS
IT IS FURTHER ORDERED that Defendants and their successors, assigns, officers, agents, servants, employees, and attorneys, and those persons or entities in active concert or participation with any of them who receive actual notice of this Order by personal service, facsimile transmission, email, or otherwise, whether acting directly or through any corporation, subsidiary, division, trade name, or other device, in connection with the advertising, marketing, promotion, offering for sale or sale of any goods or services over the Internet, in or affecting commerce, are hereby restrained and enjoined from, or from assisting others in, selling goods over the Internet using any Website domain name, extension, or suffix associated with a country other than the United States, including but not limited to, e.g., ".ca," ".uk," ".de," ".be," ".eu," or ".cn," unless the individual or business making the sale is located within the foreign country corresponding to the domain name, extension, or suffix and conducts substantially all of its business activities therein.
BAN ON CREDIT OR DEBIT ...