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Federal Trade Commission v. ABC Hispana Inc.

United States District Court, C.D. California

April 18, 2017

FEDERAL TRADE COMMISSION, Plaintiff,
v.
ABC HISPANA, INC., a corporation; ISB LATINO, INC., a corporation; ABC LATINA, LLC, a limited liability company; GONZALO RICARDO BAZAN JIMENEZ; and MILAGROS RAQUEL URMENETA, Defendants.

          SOPHIA H. CALDERON, LOCAL COUNSEL THOMAS J. SYTA, Attorneys for Plaintiff FEDERAL TRADE COMMISSION

          ORDER FOR PRELIMINARY INJUNCTION WITH ASSET FREEZE AND OTHER EQUITABLE RELIEF

         On February 13, 2017, Plaintiff Federal Trade Commission ("Commission" or "FTC") filed its Complaint for Pennanent Injunction and Other Equitable Relief pursuant to Section 13(b) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 53(b), and the Telemarketing and Consumer Fraud and Abuse Prevention Act ("Telemarketing Act"), 15 U.S.C. §§6101-6108, and applied for an ex parte temporary restraining order, asset freeze, and other equitable relief, and an order to show cause why a preliminary injunction should not issue pursuant to Rule 65 of the Federal Rules of Civil Procedure, for Defendants' acts or practices in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and the FTC's Telemarketing Sales Rule ('TSR"), 16C.F.R.Part310.

         On February 14, 2017, this Court granted the FTC's Ex Parte Application for a Temporary Restraining Order and entered a Temporary Restraining Order with an order to show cause why a preliminary injunction should not issue against Defendants ABC Hispana, Inc., ISB Latino, Inc., ABC Latina, LLC, Gonzalo Ricardo Bazan Jimenez, and Milagros Raquel Urmeneta. All Defendants have been served with the Summons, Complaint, TRO, and other related papers filed in this action.

         Having considered the parties' pleadings, papers, and arguments, the Court hereby enters a preliminary injunction against Defendants ABC Hispana, Inc., ISB Latino, Inc., ABC Latina, LLC, Gonzalo Ricardo Bazan Jimenez, and Milagros Raquel Urmeneta, to remain in effect until the final resolution of this matter.

         FINDINGS OF FACT

         1. This Court has jurisdiction over the subject matter of this case and over Defendants, who were properly served with the Complaint, Summonses, and TRO in this matter.

         2. Venue lies properly with this Court.

         3. There is good cause to believe that Defendants ABC Hispana, Inc., ISB Latino, Inc., ABC Latina, LLC, Gonzalo Ricardo Bazan Jimenez, and Milagros Raquel Urmeneta, have engaged in, and are likely to continue to engage in, acts and practices that violate Section 5(a) of the FTC Act and various provisions of the TSR, and that the Commission is likely to prevail on the merits of this action.

         4. There is good cause to believe that consumers will suffer immediate and continuing harm from Defendants' ongoing violations of Section 5(a) of the FTC Act and various provisions of the TSR unless Defendants are restrained by Order of this Court.

         5. There is good cause to believe that immediate and irreparable damage to the Court's ability to grant effective final relief for consumers, including the refund of monies paid, restitution, or rescission of contracts, will occur from the sale, transfer, destruction, or other disposition, or concealment by Defendants of their assets or business records unless Defendants are immediately restrained and enjoined by order of this Court. Thus, there is good cause for an asset freeze and expedited discovery.

         6. Weighing the equities and considering the FTC's likelihood of ultimate success, a preliminary injunction with an asset freeze and other equitable relief is in the public interest.

         7. No security is required of any agency of the United States for issuance of a restraining order. Fed.R.Civ.P. 65(c).

         DEFINITIONS

         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, personal, or intellectual property, including, but not limited to, chattel, goods, instruments, equipment, fixtures, general intangibles, effects, leaseholds, contracts, mail or other deliveries, shares of stock, securities, inventory, checks, notes, accounts, credits, receivables (as those terms are defined in the Uniform Commercial Code), insurance policies, fines of credit, all cash or currency, and trusts, wherever located.

         2. "Assisting Others"

         includes, but is not limited to: (1) performing customer service functions, including, but not limited to, charging consumers for products or services, or receiving or responding to consumer complaints; (2) formulating or providing, or arranging for the formulation or provision of, any advertising or marketing material, including but not limited to sales scripts, direct mail solicitations, or the design, text, or use of images of any Internet website, email, or other electronic communication; (3) fomtulating or providing, or arranging for the formulation or provision of, any marketing support material or service, including, but not limited to, web or internet protocol addresses or domain name registration of any Internet websites, affiliate marketing services, or media placement services; (4) formulating or providing, or arranging for the fomtulation or provision of, any material sent to consumers, including, but not limited to, any DVD, CD, book, form, pamphlet, brochure, hardware, or software; (5) shipping or arranging for the shipping of any material to consumers; (6) providing or arranging for the provision of mail drops; (7) providing consumer names, soliciting consumers, or assisting in the generation of potential customers; (8) providing telemarketing services; (9) performing marketing, billing, or payment services of any kind; or (10) consulting with regard to any of the above.

         3. "Consumer"

         means any person.

         4. "Corporate Defendant"

         means ABC Htspana, Inc., ISB Latino, Inc., and ABC Latina, LLC, and their successors, assigns, subsidiaries, or affiliates, and any fictitious business entities or business names created or used by these entities.

         5. "Defendants"

         means the Individual Defendants and the Corporate Defendants, individually, collectively, or in any combination, and each of them by whatever names each might be known.

         6. "Document" and "Electronically Stored Information"

         are synonymous in meaning and equal in scope to the usage of the terms in Federal Rule of Civil Procedure 34(a), and include but are not limited to:

a. The original or a true copy of any written, typed, printed, electronically stored, transcribed, taped, recorded, filmed, punched, or graphic matter or other data compilations of any kind, including, but not limited to, letters, email or other correspondence, messages, instant messaging, videoconferencing, memoranda, interoffice communications, notes, reports, summaries, manuals, magnetic tapes or discs, tabulations, books, records, checks, invoices, work papers, journals, ledgers, statements, returns, reports, schedules, files, word processing documents, spreadsheets, databases, and video and sound recordings. A draft or non-identical copy is a separate document within the meaning of the term; and
b. Any electronically stored information stored on any server, Blackberry, or any type of mobile communications device, flash drives, personal digital assistants ("PDAs"), desktop personal computer and workstations, laptops, notebooks, and other portable computers, or other electronic storage media or cloud-based platforms, whether assigned to individuals or in pools of computers available for shared use, or personally owned but used for work-related purposes; backup disks and tapes, archive disks and tapes, and other forms of offline storage, whether stored onsite with the computer used to generate them, stored offsite in another company facility, or stored, hosted, or otherwise maintained offsite by a third- party; and computers and related offline storage used by Defendants or Defendants' participating associates, which may include persons who are not employees of the company or who do not work on company premises.

         7. "Electronic Data Host"

         means any person or entity that stores, hosts, or otherwise maintains Electronically Stored Information. This includes, but is not limited to, any entity hosting a website or server, and any entity providing "cloud based" electronic storage.

         8. "Financial Institution"

         means any bank, savtngs 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, precious metal dealer, credit or bank debit card processing agent, automated clearing house processor, network transaction processor, or other payment processor.

         9. "Individual Defendants"

         means Gonzalo Rtcardo Bazan Junenez and Milagros Raquel Urmeneta, by whatever other names each may be known.

         10. "Person"

         means a natural person, an orgamzatton or other legal entity, including a corporation, partnership, sole proprietorship, limited liability company, association, cooperative, or any other group or combination.

         11. "Telemarketing"

         means any plan, program, or campatgn (whether or not covered by the TSR) that is conducted to induce the purchase of goods or services or a charitable contribution by use of one or more telephones, and which involves a telephone call.

         12. The terms "and" and "or" shall be construed conjunctively or disjunctively as necessary to make the applicable phase or sentence ...


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