The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge
STIPULATED FINAL ORDER FOR PERMANENT INJUNCTION AND SETTLEMENT OF CLAIMS AS TO DEFENDANT PATRICK FREEMAN
Plaintiff Federal Trade Commission ("FTC") commenced this civil action on March 27, 2012, pursuant to Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), to obtain preliminary and permanent injunctive and other equitable relief for Defendants' alleged violations of Section 5 of the FTC Act, 15 U.S.C. § 45, in connection with the marketing and sale of motor vehicle loan assistance relief services. See Dkt. No. 1. On April 4, 2012, the Court issued a Temporary Restraining Order. See Dkt. No. 17. On April 16, 2012, the FTC and defendant Patrick Freeman agreed to, and the Court entered, a stipulated Preliminary Injunction. See Dkt. No. 22. On April 16, 2012, this action was referred to the undersigned Magistrate Judge pursuant to Local Rule 302(c)(21). See Dkt. No. 22 at 11; see also 28 U.S.C. § 636(c). Now, the FTC and Defendant Patrick Freeman ("Settling Defendant") hereby stipulate to the entry of this Final Order for Permanent Injunction and Settlement of Claims ("Order").
By stipulation of the parties and being advised of the premises, the Court finds:
1. This is an action by the FTC instituted under Section 13(b) of the FTC Act, 15 U.S.C. § 53(b). The Complaint seeks both permanent injunctive relief and equitable monetary relief for the Settling Defendant's alleged deceptive acts or practices as alleged therein.
2. The FTC has the authority under Section 13(b) of the FTC Act to seek the relief it has requested, and the Complaint states a claim upon which relief can be granted against the Settling Defendant.
3. This Court has jurisdiction over the subject matter of this case and has jurisdiction over the Settling Defendant. Venue in the Eastern District of California is proper.
4. The activities of the Settling Defendant, as alleged in the Complaint, are in or affecting commerce, as defined in Section 4 of the FTC Act, 15 U.S.C. § 44.
5. The FTC and the Settling Defendant stipulate and agree to entry of this Order, without trial or final adjudication of any issue of fact or law, to settle and resolve all matters in dispute arising from the conduct alleged in the Complaint to the date of entry of this Order. This settlement does not settle and resolve any matters not alleged in the Complaint. This Order is for settlement purposes only, and does not constitute and shall not be interpreted to constitute an admission by the Settling Defendant or a finding that the law has been violated as alleged in the Complaint, or that the facts alleged in the Complaint, other than the jurisdictional facts or as provided in Sections VI.D and VII of this Order, are true.
6. The Settling Defendant waives all rights to seek judicial review or otherwise challenge or contest the validity of this Order. The Settling Defendant also waives any claim that he 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. Each settling party shall bear its own costs and attorneys fees.
7. This action and the relief awarded herein are in addition to, and not in lieu of, other remedies as may be provided by law, including both civil and criminal remedies.
8. Entry of this Order is in the public interest.
1. "Assisting others" includes, but is not limited to, providing any of the following goods or services to another person:
A. performing customer service functions, including, but not limited to, receiving or responding to consumer complaints;
B. formulating or providing, or arranging for the formulation or provision of, any telephone sales script or any other marketing material, including but not limited to, the text of any Internet website, email, or other electronic communication;
C. providing names of, or assisting in the generation of, potential customers;
D. performing marketing services of any kind; or
E. acting or serving as an owner, officer, director, manager, or principal of any entity.
2. "Competent and reliable evidence" means tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that has been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.
3. "Customer" means any person who has paid, or may be required to pay, for products, services, plans, or programs offered for sale or sold by any other person.
4. "Document" is equal in scope and synonymous in meaning to the usage of the term 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 compilations from which information can be obtained. A draft or non-identical copy is a separate document within the meaning of the term.
5. "Financial related product or service" means any product, service, plan, or program represented, expressly or by implication, to:
A. provide any consumer, arrange for any consumer to receive, or assist any consumer in receiving, credit, debit, or stored value cards;
B. improve, or arrange to improve, any consumer's credit record, credit history, or credit rating;
C. provide advice or assistance to any consumer with regard to any activity or service the purpose of which is to improve a consumer's credit record, credit history, or credit rating; or
D. provide any consumer, arrange for any consumer to receive, or assist any consumer in receiving, a loan or other extension of credit.
6. "Material" means likely to affect a person's choice of, or conduct regarding goods or services.
7. "Motor vehicle" means (a) any self-propelled vehicle designed for transporting persons or property on a street, highway, or other road; (b) recreational boats and marine equipment; (c) motorcycles; (d) motor homes, recreational vehicle trailers, and slide-in campers; and (e) other vehicles that are titled and sold through dealers.
8. "Motor vehicle loan" means any loan secured by title to a motor vehicle or otherwise secured by the motor vehicle as collateral.
9. "Motor vehicle loan assistance relief product or service" means any product, service, plan, or program, offered or provided to the consumer in exchange for consideration, that is represented, expressly or by implication, to assist or attempt to assist the consumer with any of the following:
A. stopping, preventing, or postponing any repossession of the consumer's motor vehicle, or otherwise saving the consumer's motor vehicle from repossession;
B. negotiating, obtaining, or arranging a modification of any term of a motor vehicle loan, including a reduction in the amount of interest, principal balance, monthly payments, or fees;
C. obtaining any forbearance or modification in the timing of payments from any motor vehicle loan holder or servicer on any motor vehicle loan;
D. negotiating, obtaining, or arranging any extension of the period of time within which the consumer may (i) cure his or her default on a motor vehicle loan, (ii) reinstate his or her motor vehicle loan, (iii) redeem a motor vehicle, or (iv) exercise any right to reinstate a motor vehicle loan or redeem a motor vehicle;
E. obtaining any waiver of an acceleration clause or balloon payment contained in any promissory note or contract secured by any motor vehicle; or
F. negotiating, obtaining, or arranging a sale of a motor vehicle or any other disposition of a motor vehicle loan other than a sale to a third party that is not the motor vehicle loan holder.
The foregoing shall include any manner of claimed assistance, including, but not limited to, auditing or examining a consumer's motor vehicle loan application.
10. "Person" means a natural person, organization, or other legal entity, including a corporation, partnership, proprietorship, association, cooperative, or any ...