Federal Trade Commission, and State of Florida, Office of the Attorney General v. Information Management Forum, Inc. et al
Filing
17
PRELIMINARY INJUNCTION Signed by Judge Gregory A. Presnell on 7/9/2012. (ED)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
Federal Trade Commission, and
State of Florida, Office of the Attorney
General
Plaintiffs,
v.
Information Management Forum, Inc., d/b/a
Vacation Property Marketing and
Vacation Property Marketing, Inc., and
Edward Lee Windsor, individually, and as an
officer of Information Management Forum,
Inc.
Defendants.
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) Case No. 6:12-cv-986-Orl-31KRS
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) Stipulated Preliminary
) Injunction
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This matter comes before the Court on stipulation of Plaintiffs, Federal Trade
Commission (“FTC”), and the State of Florida, Office of the Attorney General (“the State of
Florida”)(collectively “Plaintiffs”), and Defendant Edward Lee Windsor, for himself and on
behalf of the corporate Defendant, Information Management Forum, Inc.
Plaintiffs commenced this action by filing their Complaint for Permanent Injunction
and Other Equitable Relief in this matter, pursuant to Sections 13(b) and 19 of the Federal
Trade Commission Act (“FTC Act”), 15 U.S.C. § 53(b) and 57b, the Telemarketing and
Consumer Fraud and Abuse Prevention Act (“Telemarketing Act”), 15 U.S.C. §§ 6101-6108,
and the Florida Deceptive and Unfair Trade Practices Act, Chapter 501, Part II, Florida
Statutes (2010), and moved for an ex parte temporary restraining order and other relief
pursuant to Rule 65 of the Federal Rules of Civil Procedure.1 The Court then granted
Plaintiffs’ requested relief with the entry of an ex parte Temporary Restraining Order with
asset freeze, the appointment of a receiver, and other equitable relief, and ordered the
Defendants, Edward Lee Windsor and Information Management Forum, Inc., to appear and
show cause why the Court should not enter a preliminary injunction against them pending a
final ruling on the Complaint (“TRO”).2 Thereafter, Edward Lee Windsor, for himself and
on behalf of his company, Information Management Forum, Inc., agreed to the entry of a
preliminary injunction against the Defendants in the form prescribed below.3
THEREFORE, on joint motion of the parties and concurrence by the receiver,4 and
after having considered the submissions of the parties and being otherwise fully advised in
the premises, it is hereby ORDERED, ADJUDGED, AND DECREED as follows:
1.
This Court has jurisdiction over the subject matter of this case and there is
good cause to believe that it has jurisdiction over the parties.
2.
Venue lies properly with this Court.
3.
There is good cause to believe that Edward Lee Windsor, and his company
Information Management Forum, Inc. (collectively “Defendants”), have engaged in and are
likely to engage in the future in, acts and practices that violate Section 5(a) of the FTC Act,
1
Dkt # 1 (Complaint); 3 (Motion); 4 (Memorandum in Support of Motion).
2
Dkt # 8 (Order).
3
Defendant Windsor, as sole owner and officer of the corporate Defendant, agrees to the entry of a preliminary
injunction against the corporate Defendant. Defendant Windsor informs the Court that the corporate Defendant
will not retain corporate counsel, will not present a defense, and will permit a default to be entered against it.
4
The Receiver agrees that the entry of the preliminary injunction is in the best interest of the receivership
estate.
2
15 U.S.C. § 45(a), the FTC’s Trade Regulation Rule entitled “Telemarketing Sales Rule”
(“TSR”), 16 C.F.R. Part 310, and the Florida Deceptive and Unfair Trade Practices Act,
Chapter 501, Part II, Florida Statutes (2010), and that the Plaintiffs are therefore likely to
prevail on the merits of this action.
4.
There is good cause to believe that immediate and irreparable damage
to the Court’s ability to grant effective final relief for consumers in the form of monetary
restitution will occur from the sale, transfer, or other disposition or concealment by
Defendants of their assets or corporate records unless Defendants are immediately restrained
and enjoined by order of this Court. Thus, there is good cause for the continuation of the
asset freeze and the appointment of a receiver over the corporate Defendant, Information
Management Forum, Inc.
5.
Weighing the equities and considering Plaintiffs’ likelihood of ultimate
success, an ex parte temporary restraining order with asset freeze, appointment of a receiver,
other equitable relief, and an order to show cause why a preliminary injunction should not
issue is in the public interest.
6.
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 Preliminary Injunction Order (“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,”
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“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, providing any of the
following services to any person or entity: (1) performing customer service functions,
including, but not limited to, receiving or responding to consumer complaints; (2)
formulating or providing, or arranging for the formulation or provision of, any sales script,
other marketing material, or marketing services of any kind; (3) providing names of, or
assisting in the generation of, potential customers; (4) providing credit card merchant
processing accounts, or otherwise providing access to a billing and collection system (such
as a credit card, checking, savings, share or similar account, utility bill, telephone bill,
mortgage loan account or debit card), or causing any charges to be made to such an account
or utilizing such a system; or (5) acting as an officer or director of a business entity.
3.
“Billing information” means any data that enables any person to
access a customer’s or donor’s account, such as a credit card, checking, savings, share or
similar account, utility bill, mortgage loan account, or debit card.
4.
“Individual Defendants” means Edward Lee Windsor and by whatever other
names he may be known.
5.
“Corporate Defendant” or “Receivership Defendant” means Information
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Management Forum, Inc., also d/b/a Vacation Property Marketing and Vacation Property
Marketing, Inc., and its successors and assigns, as well as any subsidiaries, and any fictitious
business entities or business names created or used by this entity.
6.
“Defendants” means the individual Defendant and the corporate Defendant,
individually, collectively, or in any combination.
7.
“Document” or “documents” means any materials listed in Fed. R. Civ. P.
34(a), and includes writings, drawings, graphs, charts, photographs, audio and video
recordings, computer records, and other data or data compilations, stored in any medium,
from which information can be obtained either directly or, if necessary, after translation into
a reasonably usable form through detection devices. A draft or non-identical copy is a
separate “document” within the meaning of this term.
8.
“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.
9.
“Material” means likely to affect a person’s choice of, or conduct regarding,
goods or services.
10.
“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.
12.
“Plaintiffs” mean the Federal Trade Commission (“Commission” or “FTC”)
and the State of Florida, Office of the Attorney General.
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13.
“Telemarketing” means any plan, program, or campaign (whether or not
covered by the TSR, 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.
I. PROHIBITED BUSINESS ACTIVITIES
IT IS THEREFORE ORDERED that Defendants, and their officers, agents,
directors, servants, employees, salespersons, independent contractors, attorneys, members,
partners, corporations, subsidiaries, affiliates, successors and assigns, and all other persons
or entities 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 trust,
corporation, subsidiary, division or other device, or any of them, in connection with the
telemarketing, advertising, marketing, promoting, offering for sale, or sale of any product or
service, including, but not limited to the marketing and sale of timeshare rental or resale
services, are hereby restrained and enjoined from:
A.
Misrepresenting, or assisting others in misrepresenting, directly or indirectly,
expressly or by implication, any material fact, including, but not limited to, that:
1.
Defendants have a renter or buyer for a consumer’s timeshare property
who will pay a specified price or that Defendants will quickly rent or sell a
consumer’s timeshare;
2.
Defendants will refund their fee to a consumer if the rental or sale
does not take place as promised; or
3.
Defendants will refund their fee to a consumer if the consumer
requests a return of the payment within a specified period of time;
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B.
Violating, or assisting others in violating, any provision of the TSR,
including, but not limited to:
1.
Section 310.3(a)(4) of the TSR, 16 C.F.R. § 310.3(a)(4), by making
any false or misleading statement to induce any person to pay for goods or services;
or
2.
Section 310.3(a)(2)(iv), by misrepresenting, directly or by
implication, in the sale of goods or services, any material aspect of the nature or
terms of the seller’s refund, cancellation, exchange, or repurchase policies;
C.
Violating, or assisting others in violating, any provision of the Florida
Deceptive and Unfair Trade Practices Act, Chapter 501, Part II, Florida Statutes (2010).
II. ASSET FREEZE
IT IS FURTHER ORDERED that Defendants, and their officers, agents, directors,
servants, employees, salespersons, independent contractors, members, partners, corporations,
subsidiaries, affiliates, successors and assigns, and all other persons or entities in active
concert or participation with them who receive actual notice of this Order by personal service
or otherwise, whether acting directly or through any trust, corporation, subsidiary, division or
other device, or any of them, except as provided herein, as stipulated by the parties, or as
directed by further order of the Court, are hereby restrained and enjoined from:
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 funds, real or personal
property, automobiles, accounts, contracts, consumer lists, coins, precious metals, artwork,
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shares of stock, uncashed checks, or other Assets, or any interest therein, wherever located,
including any Assets outside the territorial United States, that are:
1.
owned, controlled or held by, in whole or in part, for the benefit of, or
subject to access by, or belonging to, any Defendant;
2.
in the actual or constructive possession of any Defendant,
including, but not limited to any Assets held for or by any Defendant in any account
at any bank or savings and loan institution, or any credit card processing agent or
agent providing electronic fund transfer services or automated clearing house
processing, network transaction processor, bank debit processing agent, customer
service agent, commercial mail receiving agency, or mail holding or forwarding
company, or any credit union, retirement fund custodian, money market or mutual
fund, storage company, trustee, or with any broker-dealer, escrow agent, title
company, commodity trading company, precious metal dealer, or other financial
institution or depository of any kind, either within or outside the territorial United
States;
3.
held by an agent of any Defendant as a retainer for the agent’s
provision of services to any Defendant; or
4.
owned, controlled by, or in the actual or constructive possession
of, or otherwise held for the benefit of, any corporation, partnership or other entity
directly or indirectly owned, managed or controlled by any Defendant.
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B.
Opening or causing to be opened any safe deposit boxes, commercial mail
boxes, or storage facilities titled in the name of, or for the use or benefit of, any Defendant,
or subject to access by any Defendant, or under the control of any Defendant;
C.
Incurring charges or cash advances on any credit card, debit card, or lines of
credit issued in the name, individually or jointly, of any Defendant;
D.
Obtaining a personal or secured loan;
E.
Cashing any checks or depositing any payments from customers or
clients of Defendants; or
F.
Incurring liens or other encumbrances on real property, personal property, or
other Asset titled in the name, individually or jointly, of any Defendant or of any
corporation, partnership, or other entity directly or indirectly owned, managed, or controlled
by any Defendant.
Notwithstanding the asset freeze provisions of Section II. A-F above, and subject to
prior written agreement with the Plaintiffs, the individual Defendant may, upon compliance
with Section IV (Financial Statements), infra, pay from his individual personal funds
reasonable and necessary living expenses.
The Assets affected by this Section shall include both existing Assets and Assets
acquired after the effective date of this Order.
III.
DUTIES OF THIRD PARTY ASSET HOLDERS
IT IS FURTHER ORDERED that each financial institution, business entity, or
person maintaining or having custody or control of any account or other Asset of any
Defendant, or that at any time since January 1, 2010, has maintained or had custody of any
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such Asset, or any corporation, partnership, or other entity directly or indirectly owned,
managed, or controlled by, or under common control with any Defendant, which is provided
with a copy of this Order, or otherwise has actual or constructive knowledge of this Order,
shall:
A.
Hold and retain within its control and prohibit the withdrawal, removal,
assignment, transfer, pledge, hypothecation, encumbrance, disbursement, dissipation,
conversion, sale, liquidation, or other disposal of any of the Assets, funds, Documents, or
other property held by or under its control, on behalf of any Defendant, or for the benefit or
use of any Defendant, in whole or in part, except as directed by further order of this Court, or
by written agreement of Plaintiffs;
B.
Deny Defendants access to any safe deposit boxes, commercial mail boxes or
storage facilities that are titled in the name, individually or jointly, of any Defendant, or
otherwise subject to access by any Defendant;
C.
Provide to counsel for the Plaintiffs, within five (5) business days of notice of
this Order, a sworn statement setting forth:
1.
The identification of each account or Asset titled in the name,
individually or jointly, of any Defendant, or to which any Defendant is a signatory, or
which is held on behalf of, or for the benefit or use of, any Defendant, or subject to
any Defendant’s control, including all trust accounts on behalf of any Defendant or
subject to any Defendant’s control;
2.
The balance of each such account, or a description and appraisal
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of the value of each such Asset, as of the close of business on the day on which notice
of this Order is received, and, if the account or Asset has been closed or removed, or
more than $500 withdrawn or transferred from it within the last one hundred and
twenty (120) days, the date of the closure or removal of funds, the total funds
removed or transferred, and the name and account number of the person or entity to
whom such account, funds, or other Asset was remitted; and
3.
The identification and location of any safe deposit box, commercial
mail box, or storage facility that is either titled in the name, individually or jointly, of
any Defendant, or is otherwise subject to access or control by any Defendant. If the
account, safe deposit box, storage facility, or other Asset has been closed or removed
within the last one hundred and twenty (120) days, the date closed or removed and
the balance on said date;
D.
Within five (5) days of a request by Plaintiffs, provide Plaintiffs with
copies of any records or other Documents pertaining to each such account or Asset,
including, but not limited to, originals or copies of account applications, corporate
resolutions, 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;
E.
Plaintiffs may properly serve this Order on any financial or brokerage
institution, business entity or person that holds, controls or maintains custody of any account
or Asset of any Defendant or has held, controlled or maintained custody of any account or
Asset of any Defendant at any time since January 1, 2010, by facsimile transmission, hand
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delivery, or overnight carrier. The Assets affected by this Section shall include both existing
Assets and Assets acquired after the effective date of this Order.
IV. FINANCIAL STATEMENTS AND INFORMATION
IT IS FURTHER ORDERED that, if they have not already done so, each Defendant
shall serve upon counsel for Plaintiffs, within five (5) days of service of this Order:
A.
A completed financial statement, accurate as of the date of entry of this Order,
for the individual Defendant in the form provided as Attachment A, “Financial Statement of
Individual Defendant,” and for the corporate Defendant, in the form provided as Attachment
B, “Financial Statement of Corporate Defendant.” The financial statements shall include
all Assets held outside the territory of the United States, shall be accurate as of the date
of entry of this Order, and shall be verified under oath. Defendants shall attach to these
completed financial statements copies of all local, state, provincial, and federal income and
property tax returns, along with other attachments and schedules as called for by the
instructions to the financial statements; and
B.
The name, address and telephone number of each accountant, financial
planner, investment advisor, stock broker or other individual, corporation, or partnership
whom they have used for financial, business or tax advice or services, since January 1, 2010.
V. MAINTAIN RECORDS AND REPORT NEW BUSINESS ACTIVITY
IT IS FURTHER ORDERED that Defendants, and their officers, agents, directors,
servants, employees, salespersons, independent contractors, attorneys, members, partners,
corporations, subsidiaries, affiliates, successors and assigns, and all other persons or entities
in active concert or participation with them who receive actual notice of this Order by
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personal service or otherwise, whether acting directly or through any trust, corporation,
subsidiary, division or other device, or any of them, are hereby restrained and enjoined from:
A.
Failing to create and maintain books, records, accounts, bank statements,
accountants’ reports, general ledgers, general journals, cash receipt ledgers, cash
disbursement ledgers and source documents, documents indicating title to real or personal
property, and any other data which, in reasonable detail, accurately, fairly, and completely
reflect the incomes, disbursements, transactions, dispositions, and uses of the Defendants’
Assets;
B.
Destroying, erasing, mutilating, concealing, altering, transferring, or
otherwise disposing of, in any manner, directly or indirectly, any Documents, including
electronically stored information, that relate in any way to the business practices or business
or personal finances of Defendants; to the business practices or finances of entities directly
or indirectly under the control of Defendants; or to the business practices or finances of
entities directly or indirectly under common control with any other Defendant; and
C.
Creating, operating, or exercising any control over any business
entity, whether newly formed or previously inactive, including any partnership, limited
partnership, joint venture, sole proprietorship, or corporation, without first providing
Plaintiffs with a written statement disclosing: (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.
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VI. APPOINTMENT OF TEMPORARY RECEIVER
IT IS FURTHER ORDERED that Mark J. Bernet shall continue his appointment as
a temporary receiver (“Receiver”) for Defendant Information Management Forum, Inc., and
any of its affiliates, subsidiaries, divisions, or sales operations, wherever located
(“Receivership Defendant”), with the full power of an equity receiver. The Receiver is
directed and authorized to accomplish the following:
A.
Assume full control of the Receivership Defendant by removing, as
the Receiver deems necessary or advisable, any director, officer, independent contractor,
employee, or agent of the Receivership Defendant, including the individual Defendant, from
control of, management of, or participation in, the affairs of the Receivership Defendant.
The Receiver shall, however, not interfere with or be privy to the defense of this action;
B.
Take custody, control, and possession of all Assets and Documents of,
or in the possession, custody or under the control of, the Receivership Defendant wherever
situated and including, but not limited to, the business premises of the Receivership
Defendant. The Receiver shall have full power to divert mail and to sue for, collect, receive,
take possession, hold and manage all Assets and Documents of the Receivership Defendant
and other persons or entities whose interests are now held by or under the direction,
possession, custody, or control of the Receivership Defendant. Provided, however, that the
Receiver shall not attempt to collect any amount from a consumer if the Receiver believes
the consumer was a victim of the unfair or deceptive acts or practices alleged in the
Complaint in this matter, without prior Court approval;
C.
Use any means necessary to take possession of and to secure each and
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every business premises of the Receivership Defendant. Such steps may include, but are not
limited to, any of the following, as the Receiver deems necessary or advisable: (1) serving
this Order; (2) completing a written inventory of all receivership Assets; (3) obtaining
pertinent information from all employees and other agents of the Receivership Defendant,
including, but not limited to, the name, home address, Social Security number, job
description, passwords or access codes, method of compensation, and all accrued and unpaid
commissions and compensation of each such employee or agent; (4) photographing and
video taping any or all portions of the location; (5) securing the location by changing the
locks and disconnecting any computer modems, servers, network access, or other means of
access to the computer or other records maintained at that location; and (6) requiring any
persons present on the premises at the time this Order is served to leave the premises, to
provide the Receiver with proof of identification, or to demonstrate to the satisfaction of the
Receiver that such persons are not removing from the premises Documents or Assets of the
Receivership Defendant. Law enforcement personnel, including, but not limited to, police or
sheriffs, may assist the Receiver in implementing these provisions in order to keep the peace
and maintain security;
D.
Conserve, hold, and manage all Assets of the Receivership Defendant
and perform all acts necessary or advisable to preserve the value of those Assets in order to
prevent any irreparable loss, damage, or injury to consumers or creditors of the Receivership
Defendant, including, but not limited to, obtaining an accounting of the assets and preventing
unauthorized transfer, withdrawal, or misapplication of Assets, and including the authority to
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liquidate or close out any open securities or commodities futures positions of the
Receivership Defendant;
E.
Enter into contracts and purchase insurance as advisable or necessary;
F.
Prevent the inequitable distribution of assets and determine, adjust,
and protect the interests of consumers and creditors who have transacted business with the
Receivership Defendant;
G.
Manage and administer the business of the Receivership Defendant
until further order of this Court by performing all incidental acts that the Receiver deems to
be advisable or necessary;
H.
Make payments and disbursements from the receivership estate that
are necessary or advisable for carrying out the directions of, or exercising the authority
granted by, this Order. The Receiver shall apply to the Court for prior approval of any
payment of any debt or obligation incurred by the Receivership Defendant prior to the date
of entry of this Order, except payments that the Receiver deems necessary or advisable to
secure assets of the Receivership Defendant, such as rental payments;
I.
Determine and implement the manner in which the Receivership
Defendant will comply with, and prevent violations of, this Order and all other applicable
laws;
J.
Institute, compromise, adjust, appear in, intervene in, or become party
to such actions or proceedings in state, federal, or foreign courts that the Receiver deems
necessary and advisable to preserve or recover the Assets of the Receivership Defendant or
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that the Receiver deems necessary and advisable to carry out the Receiver’s mandate under
this Order;
K.
Defend, compromise, adjust, or otherwise dispose of any or all actions
or proceedings instituted in the past or in the future against the Receiver in his role as
Receiver, or against the Receivership Defendant, as the Receiver deems necessary and
advisable to preserve the Assets of the Receivership Defendant, or as the Receiver deems
necessary and advisable to carry out the Receiver's mandate under this Order;
L.
Continue to conduct the business of the Receivership Defendant in
such manner, to such extent, and for such duration as the Receiver may in good faith deem to
be necessary or appropriate to operate the businesses profitably and lawfully, if at all;
provided that the continuation and conduct of the business shall be conditioned upon the
Receiver's good faith determination that the business can be lawfully operated at a profit
using the Assets of the receivership estate;
M.
Issue subpoenas to obtain Documents and records pertaining to the
receivership, and conduct discovery in this action on behalf of the receivership estate;
N.
Open one or more bank accounts as designated depositories for funds
of the Receivership Defendant. The Receiver shall deposit all funds of the Receivership
Defendant in such a designated account and shall make all payments and disbursements from
the receivership estate from such an account. The Receiver shall serve copies of monthly
account statements on all parties;
O.
Maintain accurate records of all receipts and expenditures made as
Receiver;
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P.
Cooperate with reasonable requests for information or assistance from
any state or federal law enforcement agency, including Plaintiffs; and
Q.
File reports with the Court on a timely basis.
VII. COOPERATION WITH THE RECEIVER
IT IS FURTHER ORDERED that
A.
Defendants, and their officers, agents, directors, servants, employees,
salespersons, independent contractors, attorneys, members, partners, corporations,
subsidiaries, affiliates, successors and assigns, and all other persons or entities in active
concert or participation with them who receive actual notice of this Order by personal service
or otherwise, whether acting directly or through any trust, corporation, subsidiary, division or
other device, or any of them, and all other persons or entities served with a copy of this
Order, shall fully cooperate with and assist the Receiver. This cooperation and assistance
shall include, but not be limited to:
1.
Providing any information to the Receiver that the Receiver deems
necessary in order to exercise the authority and discharge the responsibilities of the
Receiver under this Order;
2.
Providing any password required to access any computer, electronic
file, or telephonic data in any medium; and
3.
Advising all persons who owe money to the Receivership Defendant
that all debts should be paid directly to the Receiver.
B.
Defendants and their officers, agents, directors, servants, employees,
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salespersons, independent contractors, attorneys, members, partners, corporations,
subsidiaries, affiliates, successors and assigns, and all other persons or entities in active
concert or participation with them who receive actual notice of this Order by personal service
or otherwise, whether acting directly or through any trust, corporation, subsidiary, division or
other device, or any of them, and all other persons or entities served with a copy of this
Order, are hereby restrained and enjoined from directly or indirectly:
1.
Transacting any of the business of the Receivership Defendant;
2.
Destroying, secreting, defacing, mutilating, concealing, altering,
transferring, or otherwise disposing of any Document of the Receivership Defendant,
including but not limited to books, records, tapes, discs, accounting data, checks
(fronts and backs), correspondence, forms, advertisements, website designs and texts,
telemarketing scripts or outlines, brochures, manuals, banking records, customer lists,
customer files, customer payment histories, invoices, telephone records, ledgers,
payroll records, or other Documents of any kind, including electronically stored
information;
3.
Transferring, receiving, altering, selling, encumbering, pledging,
assigning, liquidating, or otherwise disposing of any Asset owned, controlled, or in
the possession or custody of, or in which an interest is held or claimed by, the
Receivership Defendant, or the Receiver;
4.
Excusing debts owed to the Receivership Defendant;
5.
Failing to notify the Receiver of any Asset, including accounts, of the
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Receivership Defendant held in any name other than the name of the Receivership
Defendant, or by any person or entity other than the Receivership Defendant, or
failing to provide any assistance or information requested by the Receiver in
connection with obtaining possession, custody, or control of such Assets;
6.
Doing any act or refraining from any act whatsoever to interfere
with the Receiver managing, or taking custody, control, or possession 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 the Receivership Defendant; 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; or
7.
Filing, or causing to be filed, any petition on behalf of the
Receivership Defendant for relief under the United States Bankruptcy Code, 11
U.S.C. § 101 et. seq., without prior permission from this Court.
VIII. COMPENSATION OF RECEIVER
IT IS FURTHER ORDERED that the Receiver is entitled to reasonable
compensation for the performance of all duties pursuant to this Order, and for the cost of
actual out-of-pocket expenses incurred, solely from the Assets now held by, or in the
possession or control of, or which may be received by the Receivership Defendant. The
Receiver shall file with the Court, and serve on the parties, periodic requests for the payment
of such compensation, with the first such request due prior to sixty (60) days after the date of
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this Order. The Receiver shall not increase the Receiver’s fee billed to the receivership
estate without prior approval of the Court.
IX. BOND
IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 65(c), the Receiver is
not required to post a bond with the Clerk of this Court.
X. IMMEDIATE ACCESS TO BUSINESS OFFICES AND RECORDS
IT IS FURTHER ORDERED that the Receiver, Plaintiffs, and their representatives,
agents, and assistants shall continue to have immediate access to all business locations where
the Receivership Defendant’s business-related property, records, or equipment are located.
The Receiver and his representatives, agents, and assistants, shall also have the right to
remove Documents from any other business locations connected with the Receivership
Defendant’s business in order that they may be inspected, inventoried, and copied.
XI. DELIVERY OF RECEIVERSHIP PROPERTY
IT IS FURTHER ORDERED that, immediately upon service of this Order upon
them, or within such time as may be permitted by the Receiver, Defendant, or any other
person or entity served with a copy of this Order, shall transfer or deliver possession, custody
and control of the following to the Receiver:
A.
All Assets of the Receivership Defendant (including, but not limited to,
desktop and laptop computers and network servers), including Assets subject to repatriation
pursuant to Section XV, infra;
B.
All Documents of the Receivership Defendant, including, but not
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limited to, all financial and accounting records, balance sheets, income statements, bank
records (including monthly statements, canceled checks, records of wire transfers, and check
registers), customer lists, title documents, contracts, accounting data, written or electronic
correspondence, advertisements, computer tapes, disks, or other computerized records,
books, written or printed records, handwritten notes, telephone logs, telephone scripts,
membership records and lists, refund records, receipts, ledgers, personal and business
canceled checks and check registers, appointment books, copies of federal, state, or local
business, personal income, or property tax returns, and other Documents or records of any
kind that relate to the Receivership Defendant’s business practices;
C.
All funds and other Assets belonging to members of the public now
held by the Receivership Defendant; and
D.
All keys, codes, and passwords, entry codes, combinations to locks, and
information or devices required to open or gain access to any Asset or Document, including,
but not limited to, access to their business premises, means of communication, accounts,
computer systems, or other property.
XII. NON-COMPLIANCE WITH TRANSFERS OR DELIVERY
IT IS FURTHER ORDERED that, in the event any person or entity fails to transfer
or deliver any Asset or otherwise fails to comply with any provision of this Order requiring
the delivery of Assets, Documents or other things, 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 authorize and direct the United
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States Marshal or any sheriff or deputy sheriff of any county, or any other federal or state
law enforcement officer, to seize the Asset, Document, or other thing and to deliver it to the
Receiver.
XIII.
REPATRIATION OF FOREIGN ASSETS AND DOCUMENTS
IT IS FURTHER ORDERED that, if they have not already done so, within five (5)
business days following service of this Order Defendants shall:
A.
Repatriate to the United States all funds, Documents or Assets in foreign
countries held either: (1) by any Defendant; (2) for the benefit of any Defendant; or (3) under
the direct or indirect control, jointly or individually, of any Defendant;
B.
The same business day as any repatriation, (1) notify counsel for the Plaintiffs
and the Receiver of the name and location of the financial institution or other entity that is
the recipient of such funds, Documents or Assets; and (2) serve this Order on any such
financial institution or other entity;
C.
Provide the Plaintiffs and the Receiver with a full accounting of all funds,
Documents, and Assets outside of the territory of the United States held either: (1) by the
Defendants; (2) for the Defendants’ benefit; or (3) under the Defendants’ direct or indirect
control, individually or jointly;
D.
Provide Plaintiffs with access to all records of accounts or assets of
Defendants held by financial institutions whether located outside the territorial United States
or otherwise by signing the Consent to Release of Financial Records attached to this Order as
Attachment C.
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XIV. INTERFERENCE WITH REPATRIATION
IT IS FURTHER ORDERED that Defendants are hereby temporarily restrained and
enjoined from taking any action, directly or indirectly, which may result in the encumbrance
or dissipation of foreign Assets, or in the hindrance of the repatriation required by the
preceding Section of this Order, including, but not limited to:
A.
Sending any statement, letter, fax, e-mail or wire transmission, or 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 as all Assets have been fully repatriated pursuant to the preceding
Section 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 as all Assets have been fully repatriated pursuant
to the preceding Section of this Order.
XV. DISTRIBUTION OF ORDER BY DEFENDANTS
IT IS FURTHER ORDERED that Defendants shall immediately provide a copy of
this Order to each affiliate, agent, partner, division, sales entity, successor, assignee, officer,
director, employee, independent contractor, spouse, Internet web host or master, agent,
attorney, and/or representative of Defendants and shall, within ten (10) days from the date of
entry of this Order, serve upon counsel for the Plaintiffs a sworn statement that the
Defendants have complied with this provision of this Order, which statement shall include
the names and addresses of each such person or entity who has received a copy of the Order.
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XVI. SERVICE OF THIS ORDER
IT IS FURTHER ORDERED that copies of this Order may be distributed by U.S.
first class mail, overnight delivery, facsimile, electronic mail, or personally by agent or
employees of Plaintiffs, by agents or employees of the Receiver, by any law enforcement
agency, or by private process server, upon any person, financial institution, or other entity
that may have possession or control of any property, property right, Asset or Document of
any Defendant, or that may be subject to any provision of this Order. Service upon any
branch or office of any financial institution or entity shall effect service upon the entire
financial institution or entity.
XVII. CORRESPONDENCE WITH AND NOTICE TO PLAINTIFFS
IT IS FURTHER ORDERED that, for purposes of this Order, all correspondence
and pleadings to the Federal Trade Commission shall be addressed to:
Valerie M. Verduce, Esq.
Federal Trade Commission
225 Peachtree Street, Suite 1500
Atlanta, Georgia 30303
(404) 656-1355 (telephone)
(404) 656-1379 (facsimile)
Notice may be provided by email to vverduce@ftc.gov. All correspondence and pleadings to
the State of Florida, Office of the Attorney General, shall be addressed to:
Elizabeth J. Starr, Esq.
Senior Assistant Attorney General
Office of the Attorney General
Economic Crimes Division
135 West Central Blvd., Suite 1000
Orlando, Florida 32801
Tel: (407) 245-0833
Fax:: (407) 245-0365
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Notice may be provided by email Elizabeth.Starr@myfloridalegal.com.
XVIII. RETENTION OF JURISDICTION
IT IS FURTHER ORDERED that this Court shall retain jurisdiction over
this matter for all purposes.
IT IS SO ORDERED, this 9th day of July, 2012, at 4:00 p.m.
STIPULATED BY THE PARTIES
PLAINTIFFS
WILLARD K. TOM
General Counsel
Dated: July 9, 2012
s/ Valerie M Verduce
VALERIE M. VERDUCE, Trial Counsel
Special Bar No. A5500477
vverduce@ftc.gov
s/ S. Spencer Elg
S. SPENCER ELG, Trial Counsel
Georgia Bar No. 940592
selg@ftc.gov
225 Peachtree Street, Suite 1500
Atlanta, Georgia 30303
Telephone:(404) 656-1355 (Verduce)
Telephone:
(404) 656-1354 (Elg)
Facsimile:
(404) 656-1379
Attorneys for Plaintiff,
FEDERAL TRADE COMMISSION
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PAMELA JO BONDI
Attorney General
State Of Florida
Dated: July 9, 2012
s/ Elizabeth J. Starr
ELIZABETH J. STARR, Trial Counsel
Senior Assistant Attorney General
Florida Bar: 0187577
Elizabeth.Starr@myfloridalegal.com
Office of the Attorney General
Economic Crimes Division
135 West Central Blvd., Suite 1000
Orlando, Florida 32801
Telephone:
(407) 245-0833
Facsimile:
(407) 245-0365
Attorney for Plaintiff,
STATE OF FLORIDA
OFFICE OF THE ATTORNEY GENERAL
RECEIVER
Dated: July 9, 2012
s/ Mark J. Bernet
Mark J. Bernet, Receiver
Florida Bar: 606359
Mbernet@kasslaw.com
Kass, Shuler, Solomon, Spector, Foyle & Singer, P.A.
1505 North Florida Ave.
PO Box 800
Tampa, FL 33601
Telephone:
(813) 229-0900
Facsimile:
(813) 769-7592
** Signatures Continued on Next Page **
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DEFENDANT
Dated: July J,2012
EDWARD LEE WINDSOR,
in his individual capacity and as sole owner and officer
of Information Management Forum, Inc. d/b/a Vacation
Property Marketing and Vacation Property Marketing,
Inc.
Signed and Notarized this _-,,~Y_ day of July, 2012
Comm# 000840487
. Inc
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