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Federal Trade Commission v. Ideal Financial Solutions

May 8, 2013

FEDERAL TRADE COMMISSION,
PLAINTIFF,
v.
IDEAL FINANCIAL SOLUTIONS, INC., ET AL.,
DEFENDANTS.



[Proposed] Preliminary Injunction with Other Equitable Relief Against Jared Mosher

Plaintiff Federal Trade Commission ("the Commission" or "the FTC"), pursuant to Section 13(b) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 53(b), filed an Amended Complaint for a Permanent Injunction and Other Equitable Relief against Jared Mosher, including consumer redress, and has moved for a Preliminary Injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. See Docket Entries ("D.E.") __ & __. After reviewing the Commission's filings and exhibits, the Court enters the Preliminary Injunction and Other Equitable Relief against Jared Mosher (the "Order").

The Court, having considered the Amended Complaint,the Commission's Motion for a Preliminary Injunction against Jared Mosher, declarations and exhibits, including supplemental declarations, the FTC's Memorandum in Support of Its Motion for a Preliminary Injunction against Jared Mosher ("Mosher PI Memo"), and being otherwise advised, finds as follows:

FINDINGS OF FACT

1. This Court has jurisdiction over the subject matter of this case, and there is good cause to believe it will have jurisdiction over all parties hereto.

2. Venue is properly with this Court.

3. There is good cause to believe that Defendants Ideal Financial Solutions, Inc.; Ascot Crossing, LLC; Chandon Group, Inc.; Bracknell Shore, Ltd.; Fiscal Fitness, LLC; Avanix, LLC; Steven Sunyich; Christopher Sunyich; Michael Sunyich; Shawn Sunyich; Melissa Sunyich Gardner; Kent Brown; and Jared Mosher (collectively, "Defendants") have engaged in and are likely to engage in acts and practices that violate Section 5(a) of the FTC Act.

4. Section 13(b) of the FTC Act allows a district court to grant the Commission a Preliminary Injunction "[u]pon a proper showing that, weighing the equities and considering the Commission's likelihood of ultimate success, such action would be in the public interest." 15 U.S.C. § 53(b). Section 13(b), therefore, "places a lighter burden on the Commission than that imposed on private litigants by the traditional equity standard; the Commission need not show irreparable harm to obtain a preliminary injunction." FTC v. Warner Communications, Inc., 742 F.2d 1156, 1159 (9th Cir. 1984). Under this more lenient standard, "a court must (1) determine the likelihood that the Commission will ultimately succeed on the merits and (2) balance the Id. at 1160.

5. There is good cause to believe that the Commission is likely to prevail on the merits of this action. The evidence set forth in the Mosher PI Memo, and the accompanying declarations and exhibits, demonstrates that Jared Mosher ("Mosher") has likely engaged in unfair and deceptive acts or practices in violation of Section 5 of the FTC Act. The evidence demonstrates that Mosher along with the other Defendants participated in and controlled a common enterprise that acquired consumers' bank account or credit card information and debited those consumers' bank accounts or billed their credit cards, without such consumers'

6. Section 5 defines an unfair practice as an act or practice that "causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition." 15 U.S.C. § 45(n).

7. As the Court found in its February 15, 2013 Preliminary Injunction with Other Equitable Relief ("February 15th PI"), the Commission is likely to demonstrate that the Defendants' unauthorized debiting of consumers' bank accounts and unauthorized billing of their credit cards constitutes an unfair trade practice. See D.E. 18. First, the Commission has demonstrated that Defendants' actions have likely caused substantial injury to consumers. Although the Commission alleges that consumers were unlawfully charged approximately $30, substantial injury in this context can include such small harms to large amounts of consumers. v. Pantron I Corp., 33 F.3d 1088, 1102 (9th Cir. 1994) ("Both the Commission and the courts have recognized that consumer injury is substantial when it is the aggregate of many small individual injuries."); FTC v. Inc21.com Corp., 745 F. Supp. 2d 975, 1004 (N.D. Cal. 2010).

The Commission approximates Defendants to have unlawfully billed at least $24 million from consumers. Second, such harm was not avoidable by consumers, since the Commission alleges that consumers had not purchased any product from Defendants and had no reason to inquire into Id. (finding that purchases of products could not be reasonably avoided when consumers did not authorize or know about the purchases); FTC v. J.K. Publ'ns., Inc., 99 F. Supp. 2d 1176, 1203 (C.D. Cal. 2000) (noting that unauthorized billing is an unfair trade practice). Lastly, consumers appear not to have received any countervailing benefit for these charges. The evidence in the record demonstrates that the high percentage of "returns" (money refunded from unauthorized debiting of checking account) and "chargebacks" (money refunded from unauthorized charging of credit cards), as well as the dedicated call centers operated by Defendants only to staff consumer complaints about the charges, demonstrates that consumers received no benefit from the transactions.

8. In addition to the unauthorized transactions, the record demonstrates that Defendants likely engaged in unfair or deceptive trade practices by misrepresenting to consumers who inquired about the unauthorized charges that the consumers did in fact agree to purchase Defendants' "products." See D.E. 18. The products were billed as financial consulting services relating to payday loans, or insurance policies that protected against defaults of payday loans, or similar phony services connected to payday loans that consumers had applied for. With regards to the latter, a former call center employee of Defendant Ideal Financial testified that he would provide the financial program consultation service if a consumer requested it from the calls, but this would rarely happen. (See dkt. no. 3-3, Exh. 23, Decl. of Jeffrey Russell Stevens.) However, the high number of callers who would request reversals of the unauthorized transaction or who would call the number associated with the charge on their bill suggests that these consumers did not know about the service, did not intend to receive a benefit, or did not actually receive any benefit. The evidence raises a serious question as to whether any sizeable number of consumers actually signed up for and received Defendants' financial services in exchange for the charges. Consequently, Defendants' statements to consumers that they authorized such charges constitute misrepresentations that are likely to mislead consumers to believe that their payday loan inquiries resulted in purchases of Defendants' products.

9. The Commission is also likely to demonstrate that Mosher, like the other individual Defendants, is liable for injunctive as well as compensatory relief. Individual defendants are liable for violation of the FTC Act and subject to injunctive relief if they participated in the violations or had the authority to control them. See FTC v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1170 (9th Cir. 1997 (defendant's role of president and authority to sign documents on behalf of the corporation "demonstrate that she had the requisite control" to be held individually liable). An individual's status as a corporate officer gives rise to a presumption of control in a small, closely held company. Standard Educators, Inc. v. FTC, 475 F.2d 401, 403 (D.C. Cir. cert. denied, 414 U.S. 828 (1973). Here, Mosher was an officer of the corporate Defendants that formed the common enterprise, and in that capacity, he exercised broad authority over all aspects of Defendants' operations, including the debiting campaigns. He managed Defendants consumer leads and account information, debits of consumer accounts, micro-debits to manage return rates, customer service, and employee raises and bonuses. These facts demonstrate that Mosher participated in and controlled the Defendants' unlawful debits and customer service operations. As a result, he is likely subject to injunctive relief.

10. An individual defendant is liable for monetary relief if he or she has knowledge of the deceptive acts, is recklessly indifferent to them, or has an awareness of a high probability of fraud coupled with intentional avoidance of the truth. See FTC v. Stefanchik, 559 F.3d 924, 931 (9th Cir. 2009); FTC v. Network Svcs. Depot, Inc., 617 F.3d 1127, 1139-41 (9th Cir. 2010); FTC v. Amy Travel Serv., Inc., 875 F.2d 564, 573-74 (7th Cir. 1989). Here, the evidence demonstrates that Mosher was directly involved in the day-today workings of Defendants' unlawful debiting campaigns and customer service. Moreover, he told the Receiver that while he was working with the common enterprise, it was taking money from consumer accounts without authorization. As a result, it is likely that Mosher had knowledge of the deceptive acts, was recklessly indifferent to them, or had an awareness of a high probability of fraud and intentionally avoided

11. There is good cause to believe that immediate and irreparable damage to this Court's ability to grant effective final relief for consumers, including monetary restitution, rescission, or refunds, will occur from the sale, transfer, or other disposition by Mosher of his Assets or company records, or those Assets and company records under his control, unless he is immediately restrained and enjoined by order of this Court. The balance of the equities favors granting the Commission's request for a Preliminary Injunction because of Mosher's injurious conduct, as well as the potential for him to dissipate consumer assets without a preliminary injunction and other equitable relief. In the absence of such an order, the harm to the public interest is clear. FTC v. World Wide Factors, Ltd., 882 F.2d 344, 346 (9th Cir. 1989) (citing United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 175-76 (9th Cir. 1987), and noting that harm to the public interest is presumed by the Commission's request to enjoin conduct that violates the FTC Act). There is thus good cause for an Asset freeze, a prohibition on certain activities, and ancillary relief. In sum, weighing the equities and considering the Commission's likelihood of ultimate success on the merits, a Preliminary Injunction with Asset freeze and other equitable relief against Mosher is in the public interest.

12. The FTC is an independent agency of the United States of America. No security is required of any agency of the United States for the issuance of a Preliminary Injunction. Fed. R. Civ. P. 65(c).

DEFINITIONS

For the purposes of this Preliminary Injunction, the following definitions apply: "Asset" means any legal or equitable interest in, right to, or claim to any real or personal property, including, but not limited to, chattel, goods, instruments, equipment, fixtures, customer lists, lead lists, consumer financial information, general intangibles, effects, leaseholds, inventory, mail or other deliveries, checks, notes, accounts, credits, receivables, shares of stock, contracts, trusts, and all funds, cash and currency, or other assets, or any interest therein, wherever located.

"Corporate Defendants" meansIdeal Financial Solutions, Inc.; Ascot Crossing, LLC; Chandon Group, Inc.; Bracknell Shore, Ltd.; Fiscal Fitness, LLC; Avanix, LLC and their successors and assigns.

"Defendants" means Ideal Financial Solutions, Inc.; Ascot Crossing, LLC; Chandon Group, Inc.; Bracknell Shore, Ltd.; Fiscal Fitness, LLC; Avanix, LLC; Steven Sunyich; Christopher Sunyich; Michael Sunyich; Shawn Sunyich; Melissa Sunyich Gardner; Kent Brown; and Jared

"Document" is synonymous in meaning and equal in scope to the terms "document" and "electronically stored information," as described and used in Federal Rule of Civil Procedure

Individual Defendants means Steven Sunyich, Christopher Sunyich, Michael Sunyich, Shawn Sunyich, Melissa Sunyich Gardner, Kent Brown, and Jared Mosher.

"Receivership Entities" means Corporate Defendants and any entities that are part of Defendants' common enterprise, including, but not limited to, Debt Elimination Systems, LLC;

US Debt Relief, LLC; Money Mastery, LLC; US Debt Assistance Corp.; IWB Services (St. Kitts); Financial Fitness, LLC; Debt to Wealth, LLC (St. Kitts); Debt to Wealth, LLC (Nevada); Ideal Goodness, LLC; Dollars West, LLC; Fluidity, LLC; Newport Sails, LLC; Shaw Shank, LLC; Bunker Hillside, LLC; Funding Guarantee, LLC; Newline Cash, LLC; Wealth Fitness, LLC; and Zeal Funding Services, LLC.

"Receiver" means the Receiver appointed under the applicable section of this Preliminary Injunction. The term "Receiver" also includes any deputy receivers or agents as may be named by the Receiver.

III.PROHIBITED BUSINESS ACTIVITIES

IT IS THEREFORE ORDERED that, in connection with the billing, invoicing,

debiting, or accepting payment (collectively, "charging") for or the advertising, marketing, promotion, offering for sale, or sale of any products, goods, or services, Mosher, his successors, assigns, agents, servants, employees, or attorneys, and any person or entity in active concert or participation with him who receives actual notice of this Order by personal service or otherwise, whether acting directly or through any entity, corporation, subsidiary, division, affiliate, or other hereby preliminarily restrained and enjoined from:

A. Obtaining a consumer's bank account information or debiting a consumer's bank account without that consumer's express, informed consent;

B. Obtaining a consumer's credit card information or charging a consumer's credit card without that consumer's express, informed consent;

C. Failing to disclose or disclose adequately that Defendants will charge or debit a consumer when extending products or services to the consumer; and

D. Making, or assisting others in the making of, expressly or by implication, any material misrepresentations, including but not limited to:

1. That Defendants use a consumer's authorization to further the consumer's payday loan application;

2. That Defendants use a consumer's authorization to help find the consumer a loan;

3. That Defendants use a consumer's authorization to provide the consumer with financial counseling or financial services;

4. That the consumer agreed:

a. to purchase Defendants' products or services, or

b. to pay for Defendants' products or services; or

5. That Defendants have or will provide a refund to the consumer.

IV.ASSET FREEZE

IT IS FURTHER ORDERED that Mosher is hereby preliminarily restrained and

enjoined from directly or indirectly:

A. Transferring, liquidating, converting, encumbering, pledging, loaning, selling, concealing, dissipating, disbursing, assigning, spending, withdrawing, granting a lien or security interest or other interest in, or otherwise disposing of any Asset that is:

1. Owned or controlled, directly or indirectly, by Mosher in whole or in part, or held, in whole or in part for his benefit;

2. In the actual or constructive possession of Mosher;

3. Owned, controlled by, or in the actual or constructive possession, or otherwise held for the benefit of, any corporation, partnership, asset protection trust, or other entity directly or indirectly owned, managed, or controlled by Mosher or of which he is an officer, director, member, or manager;

4. Held by, for, under the name of, or subject to access by Mosher at any bank, savings and loan institution, broker-dealer, escrow agent, title company, insurance company, commodity trading company, payment processing company, precious metal dealer, independent sales organization, third party processor, payment gateway, or other financial institution or depository of any kind; or

5. Held in any account for which Mosher is, or was on the date that this Order was signed or served, an authorized signator.

B. Opening or causing to be opened any safe deposit boxes titled in the name of any Defendant or Receivership Entity, or subject to access by any Defendant or Receivership Entity;

C. Incurring charges or cash advances on any credit card, debit card, or checking card issued in the name, singly or jointly, of any Defendant or Receivership Entity;

D. Obtaining a personal or secured loan;

E. Incurring liens or encumbrances on real property, personal property or other Assets in the name, singly or jointly, of any Defendant or Receivership Entity; and

F. Cashing any checks from consumers, clients, or customers of any Defendant or Receivership Entity.

The Assets affected by this Section shall include: (1) all Assets of Defendants and Receivership Entities existing as of the time this Order was entered; and (2) for Assets obtained after the time this Order was entered, those Assets of Defendants and Receivership Entities that are derived, directly or indirectly, from Defendants' and Receivership Entities' activities related to unauthorized debiting or charging or deceptive statements regarding consumers' authorizations regarding debits or charges as described in the Commission's Amended Complaint or activities that are the subject of, or are prohibited by, the Order.

This Section does not prohibit transfers to the Receiver, as specifically required in the Section on Delivery of Receivership Property, nor does it prohibit the repatriation of foreign Assets, as specifically required in the Section on Repatriation of Foreign Assets of this Order.

FINANCIAL REPORTS AND ACCOUNTING IT IS FURTHER ORDERED that Mosher shall:

A. Prepare and serve on counsel for the FTC and the Receiver, within three (3) business days after service of this Order, completed financial statements fully disclosing his finances and those of all corporations, limited liability companies, partnerships, trusts or other entities that he owns, controls, or is associated with in any capacity, jointly or individually, using the forms attached to this Order as Attachment A, accurate as of the date of service of this Order

B. Prepare and serve on counsel for the FTC and the Receiver, within three (3) business days after service of this Order, copies of signed and completed federal and state income tax forms, including all schedules and attachments, for the three most recent filing years;

C. Provide access to records and Documents held by financial institutions outside the territory of the United States by signing the Consent to Release of Financial Records (attached to this Order as Attachment B) immediately upon service of this Order upon it; and

D. Provide copies of such other financial statements as the Receiver or the FTC may request in order to monitor his compliance with the provisions of this Order.

VI.RETENTION OF ASSETS AND RECORDS BY FINANCIAL INSTITUTIONS AND THIRD PARTIES

IT IS FURTHER ORDERED that any financial or brokerage institution or depository, escrow agent, title company, commodity trading company, payment processing company, trust, entity or person that: (1) holds, controls, or maintains custody of any account or Asset owned or controlled by Mosher; (2) holds, controls, or maintains custody of any Asset associated with credit or debit card charges, electronic fund transfers, or remotely created checks made by, or on behalf of, Mosher; or (3) has held, controlled, or maintained any account or Asset of, or on behalf of, Mosher at any time since January 1, 2010, shall, upon service of this Order:

A. Hold and retain within its control and prohibit any person or entity with control over such Assets from withdrawing, removing, assigning, transferring, pledging, encumbering, disbursing, dissipating, converting, selling, gifting, or otherwise disposing of any such Assets

1. As directed by further order of the Court; or

2. As directed in writing by the Receiver (regarding Assets held in the name of or for the benefit of a Receivership Entity);

B. Deny Mosher access to any safe deposit box titled in the name of any Defendant or Receivership Entity, individually or jointly, or subject to access by any Defendant or Receivership Entity, whether directly or indirectly;

C. Provide counsel for the FTC and the Receiver, within three (3) business days after being served with a copy of this Order, a certified statement setting forth:

1. The identification number of each such account or Asset titled:

a. In the name, individually or jointly, of Mosher;

b. Held on behalf of, or for the benefit of, Mosher;

c. Owned or controlled by Mosher; or

d. Otherwise subject to access by Mosher, directly or indirectly;

2. The balance of each such account, or a description of the nature and value of such Asset, as of the close of business on the day on which this Order is served, and, if the account or other Asset has been closed or removed, the date closed or removed, the total funds removed in order to close the account, and the name of the person or entity to whom such account or other Asset was remitted;

3. The identification of any safe deposit box that is either titled in the name of Mosher, or is otherwise subject to access by Mosher; and

4. If an account, safe deposit box, or other Asset has been closed or removed, the date closed or removed, the balance of any account or value of any Asset on such date, and the manner in which such account or Asset was closed or removed;

D. Provide counsel for the FTC and the Receiver, within three (3) business days after being served with a request, copies of all Documents pertaining to such account or Asset, including but not limited to originals or copies of account applications, account statements, signature cards, checks, drafts, deposit tickets, transfers to and from the accounts, all other debit and credit instruments or slips, currency transaction reports, 1099 forms, and safe deposit box logs, provided that such institution or custodian may charge a reasonable fee; and

E. Cooperate with all reasonable requests of the Receiver relating to this Order's implementation.

VII.REPATRIATION OF FOREIGN ASSETS

IT IS FURTHER ORDERED that, within three (3) business days following the service

of this Order, Mosher shall:

A. Provide counsel for the FTC and the Receiver with a full accounting of all Assets outside of the territory of the United States which are held either:

1. By Mosher;

2. For the benefit of Mosher; or

3. Under direct or indirect control, individually or jointly, of Mosher, as required by the forms included in Attachment A;

B. Transfer to the territory of the United States all such Assets in foreign countries;

C. Hold and retain all repatriated Assets, and prevent any disposition, transfer, or dissipation whatsoever of any such Assets, except as required by this Order.

VIII.NON-INTERFERENCE WITH REPATRIATION

IT IS FURTHER ORDERED that Mosher, and each of his successors, assigns, agents,

servants, employees, and attorneys, and those persons in active concert or participation with him who receive actual notice of this Order by personal service or otherwise, whether acting directly or through any entity, corporation, subsidiary, division, affiliate or other device, are hereby preliminarily restrained and enjoined from taking any action, directly or indirectly, that may result in the encumbrance or dissipation of foreign Assets, or in the hindrance of the repatriation required by Section VII of this Order, including but not limited to:

A. Sending any statement, letter, fax, e-mail, or wire transmission, telephoning or engaging in any other act, directly or indirectly, that results in a determination by a foreign trustee or other entity that a "duress" event has occurred under the terms of a foreign trust agreement, until such time that all Assets have been fully repatriated pursuant to Section VII of this Order; and

B. Notifying any trustee, protector, or other agent of any foreign trust or other related entities of either the existence of this Order, or of the fact that repatriation is required pursuant to a Court Order, until such time that all Assets have been fully repatriated pursuant to Section VII

IX.COOPERATION WITH THE RECEIVER

IT IS FURTHER ORDERED that Mosher, his successors, assigns, agents, servants,

employees, and attorneys shall fully cooperate with and assist the Receiver. Such cooperation and assistance shall include but not be limited to providing any information to the Receiver that the Receiver deems necessary to exercise the authority and discharge the responsibilities of the Receiver under this Order or the February 15th PI; providing any login and password required to access any computer or electronic files or information in any medium; and advising all persons who owe money to Receivership Entities that all debts should be paid directly to the Receiver. Mosher and his successors, assigns, agents, servants, employees, and attorneys are hereby restrained and enjoined from directly or indirectly:

A. Transacting any of the business of Receivership Entities;

B. Excusing debts owed to Receivership Entities;

C. Destroying, secreting, defacing, transferring, or otherwise altering or disposing of any Documents of Receivership Entities;

D. Transferring, receiving, altering, selling, encumbering, pledging, assigning, liquidating, or otherwise disposing of any Assets owned, controlled, or in the possession or custody of, or in which an interest is held or claimed by, Receivership Entities or the Receiver;

E. Failing to notify the Receiver of any Asset of a Receivership Entity held in any name other than the name of such entity, or by any person or entity other than a Receivership Entity, or failing to provide any assistance or information requested by the Receiver in connection with obtaining possession, custody, or control of such Assets; or

F. Doing any act or thing whatsoever to interfere with the Receiver's taking and keeping custody, control, possession, or managing of the Assets or Documents subject to this receivership; or to harass or interfere with the Receiver in any way; or to interfere in any manner with the exclusive jurisdiction of this Court over the Assets or Documents of Receivership Entities; or to refuse to cooperate with the Receiver or the Receiver's duly authorized agents in the exercise of their duties or authority under any Order of this Court.

This Section does not prohibit transfers to the Receiver, as specifically required in the Section on Delivery of Receivership Property or the Section on the Repatriation of Foreign Assets of this Order.

DELIVERY OF RECEIVERSHIP PROPERTY

IT IS FURTHER ORDERED that immediately upon service of this Order upon them, Mosher and his successors, assigns, agents, servants, employees, and attorneys, shall forthwith or within such time as permitted by the Receiver in writing, deliver to the Receiver possession and

A. All Assets of Receivership Entities, whether situated within or outside the territory of the United States, that are:

1. Held by Receivership Entities;

2. Held for the benefit of Receivership Entities; or

3. Under the direct or indirect control, individually or jointly, of Receivership Entities;

B. All Documents of Receivership Entities, including but not limited to all books and records of Assets, all financial and accounting records, balance sheets, income statements, bank records (including monthly statements, canceled checks, records of wire transfers, records of ACH transactions, and check registers), corporate minutes, contracts, customer and consumer lists, title Documents, and electronic records;

C. All Assets belonging to members of the public now held by Receivership Entities;

D. Any mobile phones, computers, or devices (e.g., cell phone, smart phone, tablet, laptop) used predominantly for the benefit of, or issued by, Receivership Entities;

E. All keys, computer and other passwords, entry codes, combinations to locks required to open or gain access to any of the property or effects, and all monies in any bank deposited to the credit of Receivership Entities, wherever situated; and

F. Information identifying the accounts, employees, properties, or other Assets or obligations of Receivership Entities.

In the event that any person or entity fails to deliver or transfer any Asset or Document, or otherwise fails to comply with any provision of this Section, the Receiver may file ex parte an Affidavit of Non-Compliance regarding the failure. Upon filing of the affidavit, the Court may authorize, without additional process or demand, Writs of Possession or Sequestration or other equitable writs requested by the Receiver. The writs shall command and direct the United States Marshal or any sheriff or deputy sheriff of any country, or any other federal or state law enforcement officer, to seize the Asset, Document , or other item covered by this Section and to deliver it to the Receiver.

XI.TRANSFER OF FUNDS TO THE RECEIVER BY FINANCIAL INSTITUTIONS AND OTHER THIRD PARTIES

IT IS FURTHER ORDERED that, upon service of a copy of this Order, any financial or brokerage institution or depository, escrow agent, title company, commodity trading company, payment processing company, or trust shall cooperate with all reasonable requests of counsel for the FTC and the Receiver relating to implementation of this Order, including producing records related to Mosher's Assets.

ACCESS TO BUSINESS PREMISES AND RECORDS IT IS FURTHER ORDERED that

A. Mosher and his employees or agents shall provide the Receiver with any necessary means of access to Documents, devices, and records, including, without limitation, the locations of Receivership Entities' business premises, keys and combinations to locks, computer access codes, device passwords, and storage area access information.

B. Immediately upon service of this Order upon them, Mosher and his agents, employees, servants and those persons in active concert and participation with him shall produce to the Receiver all computers and other electronic data devices containing information related to the business practices or finances of Receivership Entities, including, but not limited to, those computers and other electronic data devices located at Mosher's personal residence(s). In order to prevent the destruction of electronic data, upon service of this Order upon them, Mosher and his agents, employees, servants, and those persons in active concert and participation with him shall power down (turn off) such computers or other electronic data devices containing such information in the normal course for the operating systems used on such devices and shall not use such computers or devices until the FTC or Receiver has copied or inspected them, along with any codes needed for access.

C. Within forty-eight (48) hours of service of this Order, Mosher shall produce to the Receiver a list of all agents, employees, servants, and those persons in active concert and participation with any Receivership Entity.

XIII.MOSHER'S ACCESS TO BUSINESS PREMISES AND RECORDS IT IS FURTHER ORDERED that the Receiver shall allow Mosher and his

representatives reasonable access to the premises of Receivership Entities. The purpose of this access shall be to inspect, inventory, and copy any Documents and other property owned by, or in the possession of, Receivership Entities, provided that those Documents and property are not removed from the premises without the permission of the Receiver. The Receiver shall have the discretion to determine the time, manner, and reasonable conditions of such access.

PRESERVATION OF RECORDS

IT IS FURTHER ORDERED that Mosher and his successors, assigns, agents, servants, employees, and attorneys, and those persons in active concert or participation with him who receive actual notice of this Order by personal service or otherwise, whether acting directly or through any entity, corporation, subsidiary, division, affiliate or other device, are hereby preliminarily restrained and enjoined from destroying, erasing, mutilating, concealing, altering, transferring, or otherwise disposing of, in any manner, directly or indirectly, any Documents that relate to the business practices or finances of any Defendant, including, but not limited to, any contracts, accounting data, correspondence, advertisements, computer tapes, disks or other computerized records, books, written or printed records, lead lists, consumer or customer lists or financial data, handwritten notes, recordings, telephone logs, telephone scripts, receipt books, ledgers, personal and business canceled checks and check registers, bank statements, appointment books, copies of federal, state, or local business or personal income or property taX PROHIBITION ON USE OF CONSUMER INFORMATION IT IS FURTHER ORDERED that Mosher and his agents, servants, employees, salespersons, and attorneys, as well as all other persons or entities in active concert or participation with him, who receive actual notice of this Order by personal service or otherwise, whether acting directly or indirectly, including by assisting, consulting, brokering, planning, investing, or advising, are hereby preliminarily restrained and enjoined from using, benefitting from, selling, renting, leasing, transferring, or otherwise disclosing the name, address, telephone number, email address, social security number, credit card number, debit card number, bank account number, any financial account number, or any data that enables access to a consumer's account, or other identifying information of any person which any Defendant or Receivership Entity obtained prior to entry of this Order in connection with or with a purpose of billing, invoicing, debiting, or accepting payment for or the marketing or sale of any actual or sham good or service, including those who were contacted or are on a list to be contacted by any of the Defendants or Receivership Entities. Notwithstanding the foregoing, Mosher may disclose such identifying information to a law enforcement agency (including the FTC), Receiver, or as required by any law, regulation, or court order.

CREDIT REPORTS

IT IS FURTHER ORDERED that the FTC may obtain credit reports concerning Mosher pursuant to Section 604(a)(1) of the Fair Credit Reporting Act, 15 U.S.C. §1681b(a)(1), and that, upon written request, any credit reporting agency from which such reports are requested shall provide them to the FTC.

XVII.RECORDKEEPING/BUSINESS OPERATIONS IT IS FURTHER ORDERED that Mosher and his agents, servants, employees,

salespersons, and attorneys, as well as all other persons or entities in active concert or participation with him, who receive actual notice of this Order by personal service or otherwise, whether acting directly or indirectly, including by assisting, consulting, brokering, planning, investing, or advising, are hereby preliminarily restrained and enjoined from:

A. Failing to create and maintain Documents that, in reasonable detail, accurately, fairly, and completely reflect their incomes, disbursements, transactions, and use of money;

B. Creating, operating, or exercising any control over any business entity, including any partnership, limited partnership, joint venture, trust, sole proprietorship, limited liability company or corporation, without first providing the Commission with a written statement

1. The name of the business entity;

2. The address and telephone number of the business entity;

3. The names of the business entity's officers, directors, principals, managers and employees; and

4. A detailed description of the business entity's intended activities;

C. Professionally affiliating with, becoming employed by, or performing any remunerative work for any business or person without first providing the Commission with a written statement disclosing:

1. The name of the business or person;

2. The address and telephone number of the business or person; and

3. A detailed description of the nature of affiliation, employment, or work and the nature of the Defendant's ...


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