T-Mobile USA Inc v. Wireless Rush Inc et al
Filing
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FINAL JUDGMENT AND PERMANENT INJUNCTION by Judge Margaret M. Morrow. (MD JS-6, Case Terminated). (bp)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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T-MOBILE USA, INC., a Delaware
Corporation,
Plaintiff,
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v.
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WIRELESS RUSH, INC., a California
Corporation, et al.,
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Defendants.
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23371011.1
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Case No. CV-11-07001 MMM(AGRx)
Final Judgment and Permanent
Injunction
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Plaintiff T-Mobile USA, Inc. (“T-Mobile”), brought the above-captioned
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lawsuit against Defendants Wireless Rush, Inc. and Sean Golshani (“Defendants”),
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alleging that Defendants are engaged in, and knowingly facilitate and encourage
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others to engage in the unlawful bulk purchase, computer hacking, and trafficking in
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T-Mobile-branded Subscriber Identity Module (“SIM”) cards that have been
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improperly loaded with stolen airtime, trafficking in and/or using the confidential and
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proprietary T-Mobile codes that are required to access T-Mobile’s proprietary
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activation system and wireless telecommunications network, selling methods and
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processes to defraud T-Mobile, and illegally accessing T-Mobile’s computers for the
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purpose of defrauding T-Mobile. Plaintiff further alleges that this is part of a larger
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scheme involving the unauthorized and unlawful bulk purchase, trafficking,
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advertising, and resale of T-Mobile Prepaid Handsets, including the resale of
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Handsets to buyers in foreign countries, unauthorized and unlawful computer
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unlocking of T-Mobile Prepaid Handsets, alteration of proprietary software computer
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codes installed in the Handsets to permit T-Mobile to subsidize the cost of the
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Handset, and trafficking of the Handsets and SIM cards for profit (collectively, the
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“Subsidy Theft and Activation Fraud Scheme”).
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T-Mobile alleges that the Subsidy Theft and Activation Fraud Scheme involves
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the acquisition of large quantities of T-Mobile Prepaid Handsets including SIM cards,
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from retail stores, and the solicitation of individuals (“Runners”) to purchase T-
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Mobile Prepaid Handsets with SIM cards in large quantities. The T-Mobile Prepaid
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Handsets are then removed from their original packaging, along with the accessories,
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including copies of the written warranties and ownership manuals, and the Handsets
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are shipped, unlocked or to be unlocked, and the accompanying activation materials,
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including but not limited to SIM cards, are allegedly resold by Defendants at a
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substantial profit. The T-Mobile Prepaid Handsets are acquired with the knowledge
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and intent that they will not be activated for use on the T-Mobile prepaid wireless
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23371011.1
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network, as required by the terms of the T-Mobile contracts. Instead, T-Mobile
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alleges that the T-Mobile Prepaid Handsets are computer-hacked and that the purpose
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of this hacking, known as “unlocking,” is to erase, remove, and/or disable the
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proprietary software installed in the Handsets by the manufacturers at the request and
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expense of T-Mobile, which enables the use of the T-Mobile Prepaid Handsets
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exclusively on T-Mobile’s prepaid wireless system. The unlocked Handsets are
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trafficked and resold by Defendants, at a premium, under the T-Mobile trademarks.
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T-Mobile alleges that the SIM cards are sold for use in connection with fraudulent
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activations on the T-Mobile network.
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As a result of the Defendants’ alleged active participation in the Subsidy
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Theft and Activation Fraud Scheme, T-Mobile brought claims against Defendants
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for breach of contract, federal trademark infringement and false advertising under
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15 U.S.C. § 1125(a)(1)(A) and (B), contributory trademark infringement,
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violations of the federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030, et seq.,
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common law fraud, unjust enrichment, conversion, violation of California Anti-
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Phishing Act of 2005, false advertising in violation of California Business &
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Professions Code §17500, unfair competition in violation of California Business &
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Professions Code §17200, harm to T-Mobile’s goodwill and business reputation,
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tortious interference with business relationships and prospective advantage, civil
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conspiracy, and conspiracy to induce breach of contract.
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Based on the respective positions of the parties and having reviewed the
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Complaint and file and being otherwise duly and fully advised in the premises, it is
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hereby
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ORDERED, ADJUDGED and DECREED that:
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1.
This Court has jurisdiction over all the parties and all of the claims set
forth in T-Mobile’s Complaint.
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2.
The Court finds that T-Mobile has the right to use and enforce said
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rights in the standard character mark T-Mobile and a stylized T-Mobile Mark
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(collectively, the “T-Mobile Marks”), as depicted below:
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T-Mobile uses the T-Mobile Marks on and in connection with its
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telecommunications products and services. T-Mobile alleges that Defendants’ use
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of the T-Mobile Marks without authorization in connection with the Subsidy Theft
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and Activation Fraud Scheme has caused, and will further cause, a likelihood of
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confusion, mistake and deception as to the source of origin of the counterfeit
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products, and the relationship between T-Mobile and Defendants.
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alleges that Defendants’ activities constitute false designation of origin, false
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descriptions and representations, and false advertising in commerce in violation of
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§ 43(a) of the Lanham Act, 15 U.S.C. §1125(a)(1)(A) and (B). T-Mobile alleges
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that Defendants knew or should have known that T-Mobile is the exclusive
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licensee of the T-Mobile Marks and that Defendants had no legal right to use the
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T-Mobile Marks on infringing products.
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3.
T-Mobile
The Court finds that Defendant Wireless Rush’s conduct constitutes
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violations of 15 U.S.C. § 1125(a)(1)(A) and (B) (federal trademark infringement
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and false advertising). The Court further finds that Defendant Wireless Rush’s
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conduct constitutes breach of contract, contributory trademark infringement, unjust
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enrichment, false advertising in violation of California Business & Professions
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Code §17500, unfair competition in violation of California Business & Professions
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Code §17200, harm to T-Mobile’s goodwill and business reputation, and has
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caused substantial and irreparable harm to T-Mobile, and will continue to cause
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substantial and irreparable harm to T-Mobile unless enjoined.
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4.
Final judgment is hereby entered against Defendant Wireless Rush,
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Inc. and in favor of the Plaintiff T-Mobile USA, Inc., in the principal amount of
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One Million Dollars and Zero Cents ($1,000,000.00 (U.S.)), which shall bear
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interest at the legal rate, for which let execution issue forthwith.
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5.
Defendants Wireless Rush, Inc. and Sean Golshani, and each of their
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respective partners, agents, representatives, employees, servants, heirs, personal
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representatives, beneficiaries, relatives, contractors, corporations, past and present
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respective officers, directors, successors, assigns, parents, subsidiaries, affiliates,
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related companies, predecessors-in-interest, companies, and all other persons
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acting on behalf of or for the benefit of any Defendant or who are in active concert
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or participation with any Defendant, including but not limited to any corporation,
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partnership, association, proprietorship or entity of any type that is in any way
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affiliated or associated with a Defendant or a Defendant’s representatives, agents,
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assigns, employees, servants, affiliated entities, and any and all persons and entities
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in active concert and participation with any Defendant who receive notice of this
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Order, shall be and hereby are PERMANENTLY ENJOINED from:
a.
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purchasing, selling, providing, altering, advertising, soliciting,
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using, and/or shipping, directly or indirectly, any T-Mobile
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“Activation Materials,” which consist of SIM cards, PIN
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numbers, activation and proprietary codes, and/or other
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mechanism, process or materials used to activate service or
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acquire airtime in connection with an activation on the T-
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Mobile network;
b.
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purchasing, selling, unlocking, reflashing, altering, advertising,
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soliciting, using, and/or shipping, directly or indirectly, any T-
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Mobile Handsets.
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c.
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purchasing, selling, unlocking, reflashing, altering, advertising,
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soliciting and/or shipping, directly or indirectly, any Activation
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Materials or T-Mobile mobile device that Defendants know or
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should know bears any T-Mobile marks or any marks likely to
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cause confusion with the T-Mobile marks, or any other
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trademark, service mark, trade name and/or trade dress owned
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or used by T-Mobile now or in the future;
d.
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accessing, directly or indirectly, personally or through an agent
or associate, any of T-Mobile’s internal computers or computer
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systems;
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e.
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accessing, altering, erasing, tampering with, deleting or
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otherwise disabling the software contained in any T-Mobile
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Handset;
f.
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supplying T-Mobile Activation Materials or Handsets to or
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facilitating or in any way assisting other persons or entities who
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Defendants know or should know are engaged in selling SIM
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cards, Activation Materials, and/or methods or processes to
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defraud T-Mobile or are unlocking T-Mobile Handsets and/or
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hacking, altering, erasing, tampering with, deleting or otherwise
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disabling the software installed in T-Mobile Handsets;
g.
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supplying T-Mobile Activation Materials or Handsets to or
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facilitating or in any way assisting other persons or entities who
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Defendants know or should know are engaged in any of the acts
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prohibited under this Permanent Injunction, including, without
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limitation, the buying and/or selling of T-Mobile Activation
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Materials or Handsets; and
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h.
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knowingly using the T-Mobile Marks or any other trademark,
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service mark, trade name and/or trade dress owned or used by
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T-Mobile now or in the future, or that is likely to cause
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confusion with T-Mobile’s marks, without T-Mobile’s prior
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written consent.
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The purchase, sale, trafficking, use, or shipment of any T-Mobile
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Handsets, SIM cards, or Activation Materials without T-Mobile’s prior written
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consent within and/or outside of the continental United States is and shall be
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deemed a presumptive violation of this permanent injunction.
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7.
The address of Defendants Wireless Rush, Inc. and Sean Golshani is
3380 Livonia Avenue, Los Angeles, California 90034.
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The address of Plaintiff, T-Mobile USA, Inc., is 12920 S.E. 38th
Street, Bellevue, Washington 98006.
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Defendants waive their right of appeal from the entry of this Final
Judgment.
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10. The Court retains jurisdiction over this matter and the parties to this
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action to enforce any violation of the terms of this Permanent Injunction by a
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finding of contempt and an order for payment of compensatory damages. The
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Court also retains jurisdiction to enter a subsequent Judgment for damages against
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Defendant Sean Golshani.
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11. The Court hereby finds, pursuant to Fed. R. Civ. P. 54(b), that there is
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no just reason for delay and orders that Judgment shall be entered as set forth
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herein.
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12. This Final Judgment and Permanent Injunction does not affect the
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remaining Defendants in this case, namely, World Wireless Trade Group d/b/a Mr.
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Wireless, Inc., Jesse Bachsian, and Shannon Pero.
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Date: May 23, 2012
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____________________________________
MARGARET M. MORROW
UNITED STATES DISTRICT JUDGE
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