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Federal Trade Commission v. Revmountain, LLC

United States District Court, D. Nevada

April 10, 2018

FEDERAL TRADE COMMISSION, Plaintiff,
v.
REVMOUNTAIN, LLC, a Nevada limited liability company, ROADRUNNER B2C, LLC, also d/b/a REVGO, a Nevada limited liability company. WAVE ROCK, LLC, a Nevada limited liability company, JUNIPER SOLUTIONS, LLC, a Nevada limited liability company, JASPER WOODS, LLC, a Nevada limited liability company, WHEELER PEAK MARKETING, LLC, a Nevada limited liability company, ROIRUNNER, LLC, a Nevada limited liability company, CHERRY BLITZ, LLC, a Nevada limited liability company, FLAT IRON AVENUE, LLC, a Nevada limited liability company, ABSOLUTELY WORKING, LLC, a Nevada limited liability company, THREE LAKES, LLC, a Nevada limited liability company, BRIDGE FORD, LLC, a Nevada limited liability company, HOW AND WHY, LLC, a Nevada limited liability company, SPRUCE RIVER, LLC, a Nevada limited liability company, TRIMXT, LLC, a Nevada limited liability company, ELATION WHITE, LLC, a Nevada limited liability company, IVORYPRO, LLC, a Nevada limited liability company, DOING WHAT'S POSSIBLE, LLC, a Nevada limited liability company, REVGUARD, LLC, a Colorado limited liability company, REVLIVE!, LLC, a Colorado limited liability company, BLUE ROCKET BRANDS, LLC, a Colorado limited liability company, CONVERTIS, LLC, a Colorado limited liability company, CONVERTIS MARKETING, LLC, a Colorado limited liability company, TURTLE MOUNTAINS, LLC, a Colorado limited liability company, BOULDER BLACK DIAMOND, LLC, a Colorado limited liability company, MINT HOUSE, LLC, a Colorado limited liability company, THUNDER AVENUE, LLC, a Colorado limited liability company, UNIVERSITY & FOLSOM, LLC, a Colorado limited liability company, BOULDER CREEK INTERNET SOLUTIONS, INC., a Colorado corporation, WALNUT STREET MARKETING, INC., a Colorado corporation, SNOW SALE, LLC, a Colorado limited liability company, BRAND FORCE, LLC, a Colorado limited liability company, WILD FARMS, LLC, a Colorado limited liability company, SALAMONIE RIVER, LLC, an Indiana limited liability company, INDIGO SYSTEMS, LLC, an Indiana limited liability company, NIGHT WATCH GROUP, LLC, an Indiana limited liability company, NEWPORT CROSSING, LLC, an Indiana limited liability company, GREENVILLE CREEK, LLC, an Indiana limited liability company, BROOKVILLE LANE, LLC, an Indiana limited liability company, ANASAZI MANAGEMENT PARTNERS, LLC, a Wyoming limited liability company, HONEY LAKE, LLC, a Wyoming limited liability company, CONDOR CANYON, LLC, a Wyoming limited liability company, BRASS TRIANGLE, LLC, an Arizona limited liability company, SOLID ICE, LLC, an Arizona limited liability company, SANDSTONE BEACH, LLC, an Arizona limited liability company, DESERT GECKO, LLC, an Arizona limited liability company, BLIZZARDWHITE, LLC, an Arizona limited liability company, ACTION PRO WHITE, LLC, an Arizona limited liability company, FIRST CLASS WHITENING, LLC, an Arizona limited liability company, SPARK WHITENING, LLC, an Arizona limited liability company, TITANWHITE, LLC, an Arizona limited liability company, DENTAL PRO AT HOME, LLC, an Arizona limited liability company, SMILE PRO DIRECT, LLC, an Arizona limited liability company, CIRCLE OF YOUTH SKINCARE, LLC, an Arizona limited liability company, DERMAGLAM, LLC, an Arizona limited liability company, SEDONA BEAUTY SECRETS, LLC, an Arizona limited liability company, BELLAATHOME, LLC, an Arizona limited liability company, SKINNYIQ, LLC, an Arizona limited liability company, BODY TROPICAL, LLC, an Arizona limited liability company, BLAIR MCNEA, individually and as an officer of REVGUARD, LLC, DANIELLE FOSS, individually and as an officer of BLUE ROCKET BRANDS, LLC and CONVERTIS, LLC, and JENNIFER JOHNSON, individually and as an officer of REVMOUNTAIN, LLC, Defendants.

          FOR THE PLAINTIFF FEDERAL TRADE COMMISSION: SARAH WALDROP, MICHELLE SCHAEFER

          FOR DEFENDANT DANIELLE FOSS: RACHEL HIRSCH

          STIPULATED PERMANENT INJUNCTION AND OTHER EQUITABLE RELIEF AS TO DEFENDANT DANIELLE FOSS ORDER (ECF NO. 116-1)

         Plaintiff, the Federal Trade Commission ("FTC"), filed its Complaint for Permanent 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 Section 5 of the Restore Online Shoppers' Confidence Act ("ROSCA"), 15 U.S.C. § 8403. The Commission and Defendant Danielle Foss ("Settling Defendant" or "Foss") stipulate to entry of this Stipulated Permanent Injunction and Other Equitable Relief ("Order") to resolve all matters in dispute in this action between them.

         THEREFORE, IT IS ORDERED as follows:

         FINDINGS OF FACT

         A. This Court has jurisdiction over this matter.

         B. The Complaint for Permanent Injunction and Other Equitable Relief alleges that Settling Defendant participated in deceptive acts or practices in violation of Section 5 of the FTC Act, 15 U.S.C. § 45, and Section 4 of ROSCA, 15 U.S.C. § 8403.

         C. Settling Defendant neither admits nor denies any of the allegations in the Complaint, except as specifically stated in in this Order. Only for purposes of this action, Settling Defendant admits the facts necessary to establish jurisdiction.

         D. Settling Defendant waives any claim she may have under the Equal Access to Justice Act, 28 U.S.C. § 2412, concerning the prosecution of this action through the date of this Order, and agrees to bear her own costs and attorney fees.

         DEFINITIONS

         For the purpose of this Order, the following definitions shall apply:

         A. "Asset" means any legal or equitable interest in, right to, or claim to, any property, wherever located and by whomever held.

         B. "Billing Information" means any data that enables any person to access a customer's account, such as a credit card, checking, savings, share or similar account, utility bill, mortgage loan account, or debit card.

         C. "Charge, " "Charged, " or "Charging" means any attempt to collect money or other consideration from a consumer, including but not limited to causing Billing Information to be submitted for payment, including against the consumer's credit card, debit card, bank account, telephone bill, or other account.

         D. "Clear(ly) and conspicuously)" means that a required disclosure is difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers, including in all of the following ways:

1. In any communication that is solely visual or solely audible, the disclosure must be made through the same means through which the communication is presented. In any communication made through both visual and audible means, such as a television advertisement, the disclosure must be presented simultaneously in both the visual and audible portions of the communication even if the representation requiring the disclosure is made in only one means;
2. A visual disclosure, by its size, contrast, location, the length of time it appears, and other characteristics, must stand out from any accompanying text or other visual elements so that it is easily noticed, read, and understood;
3. An audible disclosure, including by telephone or streaming video, must be delivered in a volume, speed, and cadence sufficient for ordinary consumers to easily hear and understand it;
4. In any communication using an interactive electronic medium, such as the Internet or software, the disclosure must be unavoidable;
5. The disclosure must use diction and syntax understandable to ordinary consumers and must appear in each language in which the representation that requires the disclosure appears;
6. The disclosure must comply with these requirements in each medium through which it is received, including all electronic devices and face-to-face communications;
7. The disclosure must not be contradicted or mitigated by, or inconsistent with, anything else in the communication; and
8. When the representation or sales practice targets a specific audience, such as children, the elderly, or the terminally ill, "ordinary consumers" includes reasonable members of that group.

         E. "Corporate Defendants" means RevMountain, LLC; RoadRunner B2C, LLC, d/b/a RevGo; Wave Rock, LLC; Juniper Solutions, LLC; Jasper Woods, LLC; Wheeler Peak Marketing, LLC; ROIRunner, LLC; Cherry Blitz, LLC; Flat Iron Avenue, LLC; Absolutely Working, LLC; Three Lakes, LLC; Bridge Ford, LLC; How and Why, LLC; Spruce River, LLC; TrimXT, LLC; Elation White, LLC; IvoryPro, LLC; Doing What's Possible, LLC; RevGuard, LLC; RevLive!, LLC; Blue Rocket Brands, LLC; Convertis, LLC; Convertis Marketing, LLC; Turtle Mountains, LLC; Boulder Black Diamond, LLC; Mint House, LLC; Thunder Avenue, LLC; University & Folsom, LLC; Boulder Creek Internet Solutions, Inc.; Walnut Street Marketing, Inc.; Snow Sale, LLC; Brand Force, LLC; Wild Farms, LLC; Salamonie River, LLC; Indigo Systems, LLC; Night Watch Group, LLC; Newport Crossing, LLC; Greenville Creek, LLC; Brookville Lane, LLC; Anasazi Management Partners, LLC; Honey Lake, LLC; Condor Canyon, LLC; Brass Triangle, LLC; Solid Ice, LLC; Sandstone Beach, LLC; Desert Gecko, LLC; Blizzardwhite, LLC; Action Pro White, LLC; First Class Whitening, LLC; Spark Whitening, LLC; Titanwhite, LLC; Dental Pro At Home, LLC; Smile Pro Direct, LLC; Circle of Youth Skincare, LLC; DermaGlam, LLC; Sedona Beauty Secrets, LLC; Bellaathome, LLC; SkinnyIQ, LLC; Body Tropical, LLC; and each of their subsidiaries, affiliates, successors, and assigns.

         F. "Defendant(s)" means Corporate Defendants, Blair McNea, Danielle Foss, and Jennifer Johnson, individually, collectively, or in any combination.

         G. "Settling Defendant" means Defendant Danielle Foss.

         H. "Negative Option Feature" means, in an offer or agreement to sell or provide any good or service, a provision under which the consumer's silence or failure to take affirmative action to reject a good or service or to cancel the agreement is interpreted by the seller or provider as acceptance or continuing acceptance of the offer.

         I."Telemarketing" means any plan, program, or campaign which is conducted to induce the purchase of any product, service, plan, or program by use of one or more telephones, and which involves a telephone call, whether or not covered by the Telemarketing Sales Rule, 16 C.F.R. Part 310.

         ORDER

         I. PROHIBITION AGAINST MISREPRESENTATIONS

         IT IS THEREFORE ORDERED that Settling Defendant, her officers, agents, employees, and attorneys, and all other persons in active concert or participation with any of them, who receive actual notice of this Order, whether acting directly or indirectly, in connection with promoting or offering for sale any good or service, are permanently restrained and enjoined from misrepresenting or assisting others in misrepresenting, expressly or by implication:

A. Any cost to the consumer to purchase, receive, use, or return the initial good or service;
B. That the consumer will not be Charged for any good or service;
C. That a good or service is offered on a "free, " "risk free, " "trial, " "sample, " "bonus, " "gift, " "no obligation, " or "discounted" basis, or words of similar import, denoting or implying the absence of an obligation on the part of the recipient of the offer to affirmatively act in order to avoid Charges, including where a Charge will be assessed pursuant to the offer unless the consumer takes affirmative steps to prevent or stop such a Charge;
D. That the consumer can obtain a good or service for a processing, service, shipping, handling, or administrative fee with no further obligation;
E. The purpose(s) for which the consumer's Billing Information will be used;
F. The date by which the consumer will incur any obligation or be Charged unless the consumer takes an affirmative action on the Negative Option Feature;
G. That a transaction has been authorized by the consumer;
H. The number of transactions that will be completed or the number of products that will be purchased;
I. Any material aspect of the nature or terms of a refund, cancellation, exchange, or repurchase policy for the ...

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