The opinion of the court was delivered by: Honorable Dale S. Fischer United States District Judge
FINAL ORDER FOR PERMANENT INJUNCTION AND OTHER EQUITABLE RELIEF AGAINST DEFENDANTS AMERICAN
RELIEF DEFENDANTS YOUNG SOON PARK AND IL KON PARK
Plaintiff Federal Trade Commission ("FTC" or "Commission") commenced this action by filing its Complaint for Permanent Injunction and Other Equitable Relief ("Complaint"), pursuant to Section 13(b) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 53(b), charging that American Tax Relief LLC ("ATR"), Alexander Seung Hahn ("Hahn") and Joo Hyun Park ("Park") engaged in deceptive and unfair acts or practices in violation of Sections 5(a) and 5(n) of the FTC Act, 15 U.S.C. §§ 45(a) and 45(n). Plaintiff filed a motion for summary judgment on June 8, 2012, and the Court granted partial summary judgment in favor of the FTC by Order dated August 8, 2012.
Defendants American Tax Relief LLC, d/b/a American Tax Relief, Alexander Seung Hahn, a/k/a Alex Hahn, and Joo Hyun Park, a/k/a Joo Park (collectively "Defendants"), and Relief Defendants Young Soon Park, a/k/a Young S. Park, and Il Kon Park (collectively "Relief Defendants"), having been represented by counsel, and acting by and through said counsel, have agreed to the entry of this Stipulated Final Order for Permanent Injunction and Other Equitable Relief ("Order") by this Court in order to resolve all remaining claims against them without a trial or adjudication of any issue of law or fact herein.
NOW THEREFORE, Plaintiff and Defendants and Relief Defendants, having requested the Court to enter this Order, and the Court having considered the Order reached between the parties, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows:
1. This Court has jurisdiction over the subject matter of this case and personal jurisdiction over the parties. Venue is proper in this District.
2. Pursuant to Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), the Commission has the authority to seek the relief contained herein.
3. The acts and practices of Defendants, as alleged in the Complaint, are in or affecting commerce, as defined in Section 4 of the FTC Act, 15 U.S.C. § 44.
4. The Complaint states a claim upon which relief may be granted against Defendants under Sections 5(a) and 5(n) of the FTC Act, 15 U.S.C. §§ 45(a) and 45(n).
5. On August 8, 2012, in granting partial summary judgment in favor of the FTC, the Court made the following findings:
a. ATR engaged in deceptive acts or practices in violation of Section 5 of the FTC Act, 15 U.S.C. § 45, by misrepresenting that it had significantly reduced the tax debts of thousands of people (Count I) and that consumers qualified for tax relief that would significantly reduce their tax debts (Count II);
b. Defendant Hahn and Relief Defendants Young Soon Park and Il Kon Park are individually liable; and
c. Defendant Park had the authority to control ATR and was likely at least recklessly indifferent to ATR's deceptive practices, if she did not have actual knowledge of the practices.
6. The Commission and Defendants and Relief Defendants stipulate and agree to this Order, without a trial on the remaining issues. By agreeing to the entry of this Order, Defendants and Relief Defendants neither admit nor deny any of the allegations in the Complaint, except as specifically stated in this Order. Only for purposes of this action, Defendants and Relief Defendants admit the facts necessary to establish jurisdiction.
7. Defendants and Relief Defendants waive: (a) all rights to seek judicial review or otherwise challenge or contest the validity of this Order; (b) any claim that they may have against the Commission, its employees, representatives, or agents; (c) all claims under the Equal Access to Justice Act, 28 U.S.C. § 2412, as amended by Pub. L. 104-121, 110 Stat. 847, 863-64 (1996); and (d) any rights to attorneys' fees that may arise under said provision of law. The Commission and Defendants and Relief Defendants shall each bear their own costs and attorneys' fees incurred in this action.
8. This Order is in addition to, and not in lieu of, any other civil or criminal remedies that may be provided by law.
9. Entry of this Order is in the public interest.
For purposes of this Order, the following definitions shall apply:
1. "Asset" or "Assets" means any legal or equitable interest in, right to, or claim to, any real or personal property, including, but not limited to, "goods," "instruments," "equipment," "fixtures," "general intangibles," "inventory," "checks," or "notes" (as these terms are defined in the Uniform Commercial Code), lines of credit, chattels, leaseholds, contracts, mail or other deliveries, shares of stock, lists of consumer names, accounts, credits, premises, receivables, funds, and all cash, wherever located.
2. "Assisting Others" includes, but is not limited to: (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 sales script or other marketing material; (c) providing names of, or assisting in the generation of, potential customers; (d) performing or providing marketing or billing services of any kind; or (e) acting as an officer or director of a business entity.
3. "Corporate Defendant" or "Receivership Defendant" means American Tax Relief LLC ("ATR"), and its successors and assigns, as well as any subsidiaries, and any fictitious business entities or business names created or used by these entities.
4. "Debt Relief Service" means any program or service represented, directly or by implication, to renegotiate, settle, or in any way alter the terms of payment or other terms of the debt between a consumer and one or more creditors or debt collectors, including, but not limited to, a reduction in the balance, penalties, or interest owed by a consumer to the Internal Revenue Service or state taxing authority.
5. "Defendants" means all of the Individual Defendants and the Corporate Defendant, individually, collectively, or in any combination.
6. "Document" or "Documents" means any materials listed in Federal Rule of Civil Procedure 34(a) and includes writings, drawings, graphs, charts, photographs, audio and video recordings, computer records, and other data compilations from which information can be obtained and translated, if necessary, into reasonably usable form through detection devices. A draft or nonidentical copy is a separate Document within the meaning of the term.
7. "Financial Institution" means any bank, savings and loan institution, credit union, or any financial depository of any kind, including, but not limited to, any brokerage house, trustee, broker-dealer, escrow agent, title company, commodity trading company, or precious metal dealer.
8. "Individual Defendants" means Alexander Seung Hahn and Joo Hyun Park, also d/b/a American Tax Relief, and by whatever other names each may be known.
9. "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 or combination acting as an entity.
10. "Plaintiff" means the Federal Trade Commission ("Commission" or "FTC").
11. "Receiver" means Thomas A. Seaman of Thomas Seaman Company, appointed as Permanent Equity Receiver over American Tax Relief LLC, d/b/a American Tax Relief, pursuant to Section VII of the Preliminary Injunction with Asset Freeze and Other Equitable Relief entered in this case on November 9, 2010.
12. "Relief Defendants" means Young Soon Park and Il Kon Park, and by whatever other names each may be known.
13. "Telemarketing" means a plan, program, or campaign (whether or not covered by the Telemarketing Sales Rule, 16 C.F.R. Part 310) that is conducted to induce the purchase of goods or services or a charitable contribution by use of one or more telephones.
PERMANENT BAN ON TELEMARKETING IT IS THEREFORE ORDERED that Defendants ATR and Alexander Seung Hahn, whether acting directly or through any Person, business entity, trust, corporation, partnership, limited liability company, subsidiary, division, or other device, are hereby permanently restrained and enjoined from Telemarketing, or Assisting Others engaged in Telemarketing.
PERMANENT BAN ON MARKETING DEBT RELIEF SERVICES
IT IS FURTHER ORDERED that Defendants, whether acting directly or through any Person, business entity, trust, corporation, partnership, limited liability company, subsidiary, division, or other device, are hereby permanently restrained and enjoined from engaging in, participating in, or Assisting Others in the advertising, marketing, promotion, offering for sale, or sale of any Debt Relief Service.
PROHIBITED PRACTICES RELATING TO ANY GOOD OR SERVICE
IT IS FURTHER ORDERED that Defendants and their officers, agents, servants, employees, and attorneys, and all other Persons in active concert or participation with any of them who receive actual notice of this Order by personal service or otherwise, whether acting directly or through any Person, business entity, trust, corporation, partnership, limited liability company, subsidiary, division, or other device, in connection with the advertising, marketing, promotion, offering for sale, sale, or provision of any good or service, are hereby permanently restrained and enjoined from:
A. Misrepresenting, or Assisting Others in misrepresenting, expressly or by implication, any material fact, including, but not limited to:
1. Any material aspect of the nature or terms of any refund, cancellation, exchange, or repurchase policy for the good or service, including, but not limited to, the likelihood of a consumer obtaining a full or partial refund, or the circumstances in which a full or partial refund will be granted to the consumer;
2. That any Person is affiliated with, endorsed or approved by, or otherwise connected to any other Person; government entity; public, non-profit, or other non-commercial program; or any other program;
3. The total cost to purchase, receive, or use the good or service;
4. Any material restriction, limitation, or condition on purchasing, receiving, or using the good or service; and
5. Any material aspect of the performance, efficacy, nature, or characteristics of the good or service.
B. Charging, causing to be charged, or assisting others in charging any consumer's credit card, or debiting, causing to be debited, or assisting others in debiting any consumer's bank account without the consumer's express informed consent for such charge or debit.
MONETARY JUDGMENT AGAINST DEFENDANTS IT IS FURTHER ORDERED that:
A. Judgment is hereby entered in favor of the Commission, and against Defendants, jointly and severally, for equitable monetary relief, including, but not limited to, consumer redress and/or disgorgement, in the amount of $103,387,291.62; provided, however, that the judgment for equitable monetary relief shall be suspended upon the satisfaction of the obligations imposed on Defendants by Subsections B through H of this Section and Section V.E, and the obligations imposed on Relief Defendants by Sections V and VI of this Order, and subject to the conditions set forth in Section VII of this Order.
B. Within seven (7) days of the date of entry of this Order, Defendants shall pay to the Commission all funds held in any bank accounts in any Defendant's name, including, but not limited to, the following accounts, which as of October 11, 2012, ...