Federal Trade Commission et al v. All Us Marketing LLC et al
Filing
58
PRELIMINARY INJUNCTION as to Defendant All Us Marketing LLC; granting 50 Motion for Entry of Proposed Preliminary Injunctions as to this Defendant; and appointing Mark Bernet as Permanent Equity Receiver for All Us Marketing LLC. Signed by Judge John Antoon II on 7/7/2015. (EK)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
FEDERAL TRADE COMMISSION, and
STATE OF FLORIDA, OFFICE OF THE
ATTORNEY GENERAL, DEPARTMENT OF
LEGAL AFFAIRS,
Plaintiffs,
vs.
ALL US MARKETING LLC, f/k/a Payless
Solutions, LLC, a Florida corporation;
GLOBAL MARKETING ENTERPRISES INC.,
f/k/a Pay Less Solutions Inc., a Florida corporation;
GLOBAL ONE FINANCIAL SERVICES LLC, a
Florida corporation;
YOUR #1 SAVINGS LLC, a Florida corporation;
OVADAA LLC, a Florida corporation;
ROYAL HOLDINGS OF AMERICA LLC, a
Florida corporation;
GARY RODRIGUEZ, individually and as an officer
of YOUR #1 SAVINGS LLC, and also d/b/a Global
Financial Services, LLC, Engineering Development
Enterprise LLC, and PBMS, LLC;
MARBEL RODRIGUEZ, individually and as an
officer of GLOBAL ONE FINANCIAL SERVICES
LLC, and also d/b/a American Best Savings LLC,
and Americas First Source LLC;
CARMEN WILLIAMS, individually and as an
officer of OVADAA LLC;
Case No. 6:15CV1016-0RL-28GJK
JONATHAN PAULINO, individually and as an
officerofROYAL HOLDINGS OF AMERICA
LLC;
FAIRIBORZ FARD, individually and as an officer
of GLOBAL MARKETING ENTERPRISES INC.
SHIRIN IMANI, individually and as an officer of
GLOBAL MARKETING ENTERPRISES INC. and
ALL US MARKETING LLC; and
ALEX SERNA, individually and as an officer of
ALL US MARKETING LLC, and also d/b/a GRR
FINANCIAL SERVICES LLC and AJC Global
Solutions LLC;
Defendants.
PRELIMINARY INJUNCTION AS TO DEFENDANT
ALL US MARKETING LLC
Plaintiffs, Federal Trade Commission ("Commission" or "FTC") and the State of
Florida, filed their Complaint for Permanent Injunction and Other Equitable Relief
("Complaint"), 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 ("FDUTPA"), Chapter 501, Part II, Florida
Statutes (2014), and moved ex parte for a temporary restraining order ("TRO") pursuant to
Rule 65 of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 65, which the Court granted
on June 22, 2015. This Court, having considered Plaintiffs' motion for a Preliminary
Injunction, the declarations, exhibits, and memoranda filed in support therof, and hearing no
opposition thereto, and other cause appearing, finds that:
2
1.
This Court has jurisdiction over the subject matter of this case and jurisdiction
over the All Us Marketing LLC;
2.
Venue properly lies with this Court;
3.
There is good cause to believe that the Defendant All Us Marketing LLC has
engaged in, and is likely to engage in the future in, acts and practices that violate Section 5(a)
of the FTC Act, 15 U.S.C. § 45(a); various provisions of the Telemarketing Sales Rule
("TSR"), 16 C.F.R. Part 310; and Section 501.204 of the FDUTPA, Chapter 501, Part II,
Florida Statutes, and that Plaintiffs are therefore likely to prevail on the merits of this action;
4.
There is good cause to believe that immediate and irreparable harm 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 All Us Marketing
LLC of its assets or corporate records unless All Us Marketing LLC is immediately
restrained and enjoined by Order of this Court. There is thus good cause for an asset freeze
and the appointment of a permanent receiver over corporate defendant All Us Marketing
LLC.
5.
Weighing the equities and considering Plaintiffs' likelihood of ultimate
success, a preliminary injunction is in the public interest.
6.
No security is required of any agency of the United States for issuance of a
preliminary injunction. Fed. R. Civ. P. 65(c). No bond is required with respect to relief
requested pursuant this Court's Order entered on June 22, 2015.
3
DEFINITIONS
For purposes of this Stipulated Preliminary Injunction ("Order"), the following
definitions shall apply:
I.
"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,"
"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: (a) providing
administrative services, including, but not limited to, filing business registrations with
federal, state, or local government entities, establishing bank or merchant accounts, and/or
handling banking transactions; (b) acting as an officer, director, or registered agent of a
business entity; (c) establishing mail accounts or mail receiving boxes, and/or providing
mailing or printing services; (d) performing customer service functions, including, but not
limited to, forwarding mail received from consumers and/or receiving or responding to
consumer complaints; (e) formulating or providing, or arranging for the formulation or
provision of, any sales script or other marketing material; (f) providing names of, or assisting
in the generation of, potential customers; and (g) performing or providing marketing or
billing services of any kind, including, but not limited to, performing or providing
telemarketing services.
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3.
"Individual Defendants" means Gary Rodriguez, Marbel Rodriguez, Carmen
Williams, Jonathan Paulino, Fariborz Fard, Shirin lmani, and Alex Serna, and by whatever
other names each may be known.
4.
"Corporate Defendants" means All Us Marketing LLC, f/k/a Payless
Solutions, LLC, Global Marketing Enterprises Inc., f/k/a Pay Less Solutions Inc., Global One
Financial Services LLC, Your #I Savings LLC, OVADAA LLC, and Royal Holdings Of
America LLC, and their successors and assigns, as well as any subsidiaries, and any fictitious
business entities or business names created or used by these entities, or any of them.
5.
"Defendants" means all of the Individual Defendants and the Corporate
Defendants, individually, collectively, or in any combination.
6.
"Document" or "Documents" means any materials listed in Federal Rule of
Civil Procedure 34(a), Fed. R. Civ. P. 34(a), and includes writings, drawings, graphs, charts,
photographs, audio and video recordings, computer records, and other data compilations
from which information can be obtained and translated, if necessary, through detection
devices into reasonably usable form. A draft or non-identical copy is a separate document
within the meaning of the term.
7.
"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.
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8.
"'National Do Not Call Registry" means the National Do Not Call Registry,
which is the '"do-not-call" registry maintained by the Federal Trade Commission pursuant to
16 C.F.R. § 310.4(b )( 1)(iii)(B).
9.
"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.
10.
"Plaintiffs" means the Federal Trade Commission ("FTC" or "Commission")
and the State of Florida.
11.
"Telemarketer" means any person who, in connection with telemarketing,
initiates or receives telephone calls to or from a customer or donor. 16 C.F.R. § 310.2(bb).
12.
"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 All Us Marketing LLC, and its officers,
agents, servants, employees, attorneys, and all other persons 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, in connection with the telemarketing, advertising, marketing, promoting, offering for
sale, sale, or provision of any good or service, are hereby restrained and enjoined from:
A.
Misrepresenting, or assisting others in misrepresenting, directly or indirectly,
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expressly or by implication, any material fact, including, but not limited to, that:
l.
Defendants will substantially reduce consumers' credit card interest
2.
Defendants will save consumers thousands of dollars in a short time as
rates;
a result oflowered credit card interest rates;
3.
Defendants will enable consumers to pay off their debts much faster,
typically three to five times faster, as a result oflowered credit card interest rates; and
4.
Defendants are representatives of, or otherwise affiliated with,
consumers' banks or credit card companies;
B.
Causing billing information to be submitted for payment without having
obtained consumers' express informed consent;
C.
Violating, or assisting others in violating, any provision of the Telemarketing
Sales Rule, 16 C.F.R. Part 310, including, but not limited to:
I.
Section 3 l0.3(a)(2)(x) of the TSR, 16 C.F.R. § 310.3(a)(2)(x), by
misrepresenting, directly or by implication, that:
a.
Defendants will substantially lower consumers' credit card
interest rates;
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b.
Defendants will save consumers thousands of dollars in a
short time as a result oflowered credit card interest rates; and
c.
Defendants will enable consumers to pay off their debts much
faster, typically three to five times faster, as a result oflowered credit card interest rates;
2.
Section 310.4 (a)(2)(vii) of the TSR, 16 C.F.R. § 310.4(a)(2)(vii), by
misrepresenting, directly or by implication, that Defendants are representatives of, or
otherwise affiliated with, consumers' banks or credit card companies;
3.
Section 310.4 (a)(5)(i) of the TSR, 16 C.F.R. § 310.4(a)(5)(i), by
requesting or receiving payment of any fee or consideration for debt relief services:
a.
before (i) they have renegotiated, settled, reduced, or
otherwise altered the terms of at least one debt pursuant to a settlement agreement, debt
management plan, or other such valid contractual agreement executed by the customer; and
(ii) the customer has made at least one payment pursuant to that agreement; and/or
b.
when, to the extent that debts enrolled in a service are
renegotiated, settled, reduced, or otherwise altered individually, the fee or consideration
either (i) does not bear the same proportional relationship to the total fee for renegotiating,
settling, reducing, or altering the terms of the entire debt balance as the individual debt
amount bears to the entire debt amount, or (ii) is not a percentage of the amount saved as a
result of the renegotiation, settlement, reduction, or alteration and that percentage does not
change from one individual debt to another;
4.
Section 310.4(a)(7) of the TSR, 16 C.F.R. § 310.4(a)(7), by causing
billing information to be submitted without the express informed consent of the consumer;
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5.
Section 310.4(b)(l )(iii)(B) of the TSR, 16 C.F.R. § 310.4(b)( 1)(iii)(B),
by engaging, or causing others to engage, in initiating an outbound telephone call to a person
when that person's telephone number is on the National Do Not Call Registry;
6.
Section 310.4(b)(l)(iii)(A) oftheTSR, 16 C.F.R. § 310.4(b)(l)(iii)(A),
by initiating, or causing others to initiate, an outbound telephone call to a person who
previously has stated that he or she does not wish to receive an outbound telephone call made
by or on behalf of the seller whose goods or services are being offered;
7.
Section 3 I0.4(a)(8) of the TSR, 16 C.F.R. § 310.4(a)(8), by failing to
transmit or cause to be transmitted the telephone number and name of the telemarketer or
seller to any caller identification service in use by a recipient of a telemarketing call;
8.
Section 310.4(b)(l )(v)(A)(i) of the TSR,
16 C.F.R. § 3 I0.4(b)(l )(v)(A), by initiating, or causing others to initiate, an outbound
telephone call that delivers a prerecorded message to induce the purchase of any good or
service, unless the seller has obtained from the recipient of the call an express agreement, in
writing, that:
a.
The seller obtained only after a clear and conspicuous
disclosure that the purpose of the agreement is to authorize the seller to place prerecorded
calls to such person;
b.
The seller obtained without requiring, directly or indirectly,
that the agreement be executed as a condition of purchasing any good or service;
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c.
Evidences the willingness of the recipient of the call to
receive calls that deliver prerecorded messages by or on behalf of a specific seller; and
d.
9.
Includes such person's telephone number and signature;
Section 310.4(d)(l), (2) and (3) of the TSR, 16 C.F.R. § 310.4(d)(l),
(2) and (3), by failing to disclose truthfully, promptly and in a clear and conspicuous manner
the identity of the seller, that the purpose of the call is to sell goods or services, and the
nature of the goods or services; and
10.
Section 3 I0.4(b)(l )(v)(B)(ii) of the TSR,
16 C.F.R. § 310.4(b)(l )(v)(B)(ii), by initiating, or causing others to initiate, outbound
telephone calls delivering prerecorded messages that do not promptly provide the disclosures
required by Section 310.4(d) of the TSR.
II.
ASSET FREEZE
IT IS FURTHER ORDERED that All Us Marketing LLC, and its officers, agents,
servants, employees, attorneys, and all other persons 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, 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
10
property, accounts, contracts, shares of stock, lists of consumer names, or other assets, or any
interest therein, wherever located, including 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; or
3.
In the actual or constructive possession of, or owned, controlled, or
held by, or subject to access by, or belonging to, any other corporation, partnership, trust, or
any other entity directly or indirectly owned, managed, or controlled by, or under common
control with, any Defendant, including, but not limited to, any assets held by or for any
Defendant in any account at any bank or savings and loan institution, or with any credit card
processing agent, automated clearing house processor, 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;
B.
Opening or causing to be opened any safe deposit boxes, commercial mail
boxes, or storage facilities titled in the name of any Defendant, or subject to access by any
Defendant or under any Defendant's control, without providing Plaintiffs prior notice and an
opportunity to inspect the contents in order to determine that they contain no assets covered
by this Section;
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C.
Cashing any checks or depositing or processing any payments from customers
of Defendants;
D.
Incurring charges or cash advances on any credit card issued in the name,
singly or jointly, of any Defendant; or
E.
Incurring liens or encumbrances on real property, personal property, or other
assets in the name, singly or jointly, of any Defendant or of any corporation, partnership, or
other entity directly or indirectly owned, managed, or controlled by any Defendant.
The funds, property, and assets affected by this Section shall include both existing
assets and assets acquired after the effective date of this Order.
III.
DUTIES OF THIRD PARTIES HOLDING ALL US MARKETING LLC'S ASSETS
IT IS FURTHER ORDERED that any financial institution, business entity, or
person maintaining or having custody or control of any account or other asset of All Us
Marketing LLC, or any corporation, partnership, or other entity directly or indirectly owned,
managed, or controlled by, or under common control with All Us Marketing LLC, which is
served 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:
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I.
On behalf of, or for the benefit of, All Us Marketing LLC or any other
party subject to Section II above;
2.
In any account maintained in the name of, or for the benefit of, or
subject to withdrawal by, All Us Marketing LLC or other party subject to Section II above;
and
3.
That are subject to access or use by, or under the signatory power of,
All Us Marketing LLC or other party subject to Section II above;
B.
Deny All Us Marketing LLC access to any safe deposit boxes or storage
facilities that are either:
1.
Titled in the name, individually or jointly, of any Defendant, or other
party subject to Section II above; or
2.
Subject to access by any Defendant or other party subject to Section II
above;
C.
Provide Plaintiffs, within five (5) days of the date of service of this Order, a
sworn statement setting forth:
I.
The identification number of each account or asset titled in the name,
individually or jointly, of All Us Marketing LLC, or held on behalf of, or for the benefit of,
All Us Marketing LLC or other party subject to Section II above, including all trust accounts
managed on behalf of All Us Marketing LLC or subject to All Us Marketing LLC's control;
2.
The balance of each such account, or a description of the nature and
value of such asset;
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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 All Us
Marketing LLC, or is otherwise subject to access or control by All Us Marketing LLC or
other party subject to Section II above, whether in whole or in part; and
4.
If the account, safe deposit box, storage facility, or other asset has
been closed or removed, the date closed or removed and the balance on said date;
D.
Within five (5) days of a request from any Plaintiff, provide Plaintiffs with
copies of all records or other documents pertaining to each such account or asset, including,
but not limited to, originals or copies of account applications, account statements, corporate
resolutions, 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; and
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 All Us Marketing LLC or has held, controlled or maintained custody of any
account or Asset of any All Us Marketing LLC at any time since August 2011, by facsimile
transmission, hand delivery or overnight carrier.
F.
This Section shall apply to existing accounts and assets, assets deposited or
accounts opened after the effective date of this Order, and any accounts or assets maintained,
held or controlled three years prior to the effective date of this Order. This Section shall not
prohibit transfers in accordance with any provision of this Order, any further order of the
Court, or by written agreement of the parties.
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IV.
FINANCIAL STATEMENTS
IT IS FURTHER ORDERED that All Us Marketing LLC shall serve upon counsel
for Plaintiffs, unless previously submitted in full compliance with the TRO, no later than five
(5) business days after entry of this Order, a completed financial statement, accurate as of the
date of entry of this Order, on the forms served on Defendants with this Order for Individual
Defendants and for Corporate Defendants, as the case may be, signed under penalty of
pelJUry.
The financial statements shall include assets held outside the territory of the United
States, shall be accurate as of the date of the entry of this Order, and shall be verified under
oath. All Us Marketing LLC shall attach to these completed financial statements copies of
all local, state, provincial, and federal income and property tax returns, with attachments and
schedules, as called for by the instructions to the financial statements.
v.
MAINTAIN RECORDS AND REPORT NEW BUSINESS ACTIVITY
IT IS FURTHER ORDERED that All Us Marketing LLC, and their officers, agents,
servants, employees, attorneys, and all other persons 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, are hereby restrained and enjoined from:
A.
Failing to make and keep books, records, accounts, bank statements, current
accountants' reports, general ledgers, general journals, cash receipts ledgers, cash
15
disbursements ledgers and source documents, documents indicating title to real or personal
property, and any other data which, in reasonable detail, accurately and fairly reflect the
incomes, disbursements, transactions, dispositions, and uses of All Us Marketing LLC's
assets;
B.
Destroying, erasing, mutilating, concealing, altering, transferring, or otherwise
disposing of, in any manner, directly or indirectly, any documents, including electronically
stored materials, 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 new 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, telephone
number, e-mail address, and website address 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.
VI.
PROHIBITION ON DISCLOSING CUSTOMER INFORMATION
IT IS FURTHER ORDERED that All Us Marketing LLC, and its officers, agents,
servants, employees, attorneys, 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
16
otherwise, whether acting directly or through any trust, corporation, subsidiary, division, or
other device, are hereby restrained and enjoined from:
A.
Selling, renting, leasing, transferring, or otherwise disclosing the name,
address, birth date, telephone number, e-mail address, Social Security number, credit card
number, bank account number, or other financial or identifying personal information of any
person from whom or about whom any Defendant obtained such information in connection
with activities alleged in Plaintiffs' Complaint; and
B.
Benefiting from or using the name, address, birth date, telephone number, e-
mail address, Social Security number, credit card number, bank account number, or other
financial or identifying personal information of any person from whom or about whom any
Defendant obtained such information in connection with activities alleged in Plaintiffs'
Complaint;
Provided, however, that All Us Marketing LLC may disclose such financial or
identifying personal information to a law enforcement agency or as required by any law,
regulation, or court order.
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VII.
PERMANENT RECEIVER
A. APPOINTMENT OF PERMANENT RECEIVER
IT IS FURTHER ORDERED that Mark Bernet, Esq. is appointed Permanent
Equity Receiver ("Receiver") for All Us Marketing LLC and any of its affiliates,
subsidiaries, divisions, or sales or customer service operations, wherever located, with the
full power of an equity receiver. The Receiver shall be the agent of this Court, and solely the
agent of this Court, in acting as Receiver under this Order. The Receiver shall be
accountable directly to this Court. The Receiver shall comply with all Local Rules of this
Court governing receivers.
B. RECEIVERSHIP DUTIES
IT IS FURTHER ORDERED that the Receiver is directed and authorized to
accomplish the following:
1.
Assume full control of the All Us Marketing LLC by removing, as the
Receiver deems necessary or advisable, any director, officer, employee, independent
contractor, or agent of the Corporate Defendants, including any Individual Defendant, from
control of, management of, or participation in, the affairs of the All Us Marketing LLC t;
2.
Take exclusive custody, control, and possession of all assets and
documents of, or in the possession, custody, or under the control of, All Us Marketing LLC,
wherever situated. The Receiver shall have full power to divert mail and to sue for, collect,
receive, take in possession, hold, and manage all assets and documents of the All Us
Marketing LLC and other persons or entities whose interests are now held by or under the
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direction, possession, custody, or control of All Us Marketing LLC. Provided, however, that
the Receiver shall not attempt to collect any amount from a consumer or to allow All Us
Marketing LLC to continue to debit or otherwise charge a consumer's account, if the
Receiver believes the consumer was a victim of the unfair or deceptive acts or practices
alleged in the Complaint in this matter;
3.
Use any means necessary to take possession of and to secure all areas
of the business premises of the All Us Marketing LLC. Such steps may include, but are not
limited to, the following as the Receiver deems necessary or advisable: (a) serving this
Order; (b) completing a written inventory of all receivership assets; (c) obtaining pertinent
information from all employees and other agents of the All Us Marketing LLC t, including,
but not limited to, the name, home address, Social Security number, job description, method
of compensation, and all accrued and unpaid commissions and compensation of each such
employee or agent; (d) videotaping all portions of the locations; (e) securing the locations by
changing the locks and disconnecting any computer modems or other means of access to the
computer or other records maintained at the locations; (f) 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 All Us Marketing LLC;
and/or (g) employ the assistance of law enforcement officers as the Receiver deems
necessary to implement the provisions of this Order;
4.
Conserve, hold, and manage all receivership assets, and perform all
acts necessary or advisable to preserve the value of those assets, in order to prevent any
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irreparable loss, damage, or injury to consumers or to creditors of All Us Marketing LLC,
including, but not limited to, obtaining an accounting of the assets and preventing transfer,
withdrawal, or misapplication of assets, and including the authority to liquidate or close out
any open securities or commodity futures positions of All Us Marketing LLC;
5.
Enter into contracts and purchase insurance as advisable or necessary;
6.
Prevent the inequitable distribution of assets and determine, adjust,
and protect the interests of consumers and creditors who have transacted business with All
Us Marketing LLC;
7.
Manage and administer the business of All Us Marketing LLC until
further order of this Court by performing all incidental acts that the Receiver deems to be
advisable or necessary, which includes retaining, hiring, or dismissing any employees,
independent contractors, or agents;
8.
Choose, engage, and employ attorneys, accountants, appraisers, and
other independent contractors and technical specialists, as the Receiver deems advisable or
necessary in the performance of duties and responsibilities under the authority granted by this
Order;
9.
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 All Us Marketing LLC prior to the date of
entry of this Order, except payments that the Receiver deems necessary or advisable to
secure assets of All Us Marketing LLC, such as rental payments;
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10.
Determine and implement the manner in which All Us Marketing LLC
will comply with, and prevent violations of, this Order and all other applicable laws;
11.
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 All Us Marketing LLC or that the
Receiver deems necessary and advisable to carry out the Receiver's mandate under this
Order;
12.
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 or her role as
Receiver, or against All Us Marketing LLC that the Receiver deems necessary and advisable
to preserve the assets of All Us Marketing LLC or that the Receiver deems necessary and
advisable to carry out the Receiver's mandate under this Order;
I 3.
Continue and conduct the business of All Us Marketing LLC tin 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 business profitably and lawfully, if at all; provided,
however, that the continuation and conduct of the businesses 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;
14.
Issue subpoenas to obtain documents and records pertaining to the
receivership, and conduct discovery in this action on behalf of the receivership estate;
15.
Open one or more bank accounts as designated depositories for funds
of the All Us Marketing LLC. The Receiver shall deposit all funds of the All Us Marketing
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LLC in such a designated account and shall make all payments and disbursements from the
receivership estate from such an account;
16.
Maintain accurate records of all receipts and expenditures that he or
she makes as Receiver;
17.
Cooperate with reasonable requests for information or assistance from
any state or federal law enforcement agency, including Plaintiffs; and
18.
File reports with the Court on a timely and reasonable basis.
C. COOPERATION WITH THE RECEIVER
IT IS FURTHER ORDERED that:
1.
All Us Marketing LLC and its officers, agents, servants, employees,
and attorneys, and all other persons 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, shall fully cooperate
with and assist the Receiver. This cooperation and assistance shall include, but not be
limited to:
a.
Providing any information to the Receiver that the Receiver
deems necessary to exercising the authority and discharging the responsibilities of the
Receiver under this Order;
b.
Providing any password required to access any computer,
electronic file, or telephonic data in any medium; or
c.
Advising all persons who owe money to All Us Marketing
LLC that all debts should be paid directly to the Receiver.
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2.
Defendants and their officers, agents, servants, employees, and
attorneys, and all other persons 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, are hereby restrained
and enjoined from directly or indirectly:
a.
Transacting any of the business of All Us Marketing LLC;
b.
Destroying, secreting, defacing, transferring, or otherwise
altering or disposing of any documents of All Us Marketing LLC, including, but not limited
to, books, records, accounts, writings, drawings, graphs, charts, photographs, audio and video
recordings, computer records, and other data compilations, electronically-stored records, or
any other records of any kind or nature;
c.
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, All Us Marketing
LLC, or the Receiver;
d.
Excusing debts owed to All Us Marketing LLC;
e.
Failing to notify the Receiver of any asset, including accounts,
of All Us Marketing LLC held in any name other than the name of All Us Marketing LLC, or
by any person or entity other than All Us Marketing LLC, or failing to provide any assistance
or information requested by the Receiver in connection with obtaining possession, custody,
or control of such assets;
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f.
Doing any act or refraining from any act whatsoever to
interfere with the Receiver's taking 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 All Us Marketing LLC; 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
g.
Filing, or causing to be filed, any petition on behalf of All Us
Marketing LLC for relief under the United States Bankruptcy Code, 11 U.S.C. § IOI et seq.,
without prior permission from this Court.
D. DELIVERY OF RECEIVERSHIP PROPERTY
IT IS FURTHER ORDERED that:
1.
Immediately upon entry of this Order, or within such period as may be
permitted by the Receiver, Defendants or any other person or entity shall transfer or deliver
possession, custody, and control of the following to the Receiver:
a.
All assets of, including assets subject to repatriation pursuant to
b.
All documents of All Us Marketing LLC, including, but not
Section IX, infra;
limited to, books and records of accounts, all financial and accounting records, balance
sheets, income statements, bank records (including monthly statements, canceled checks,
records of wire transfers, and check registers), client lists, title documents and other papers;
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c.
All assets belonging to members of the public now held by All
Us Marketing LLC; and
d.
All keys, codes, and passwords necessary to gain or to secure
access to any assets or documents of All Us Marketing LLC, including, but not limited to,
access to their business premises, means of communication, accounts, computer systems,
mail boxes, or other property. This includes providing the necessary means to gain access to
commercial mail boxes.
2.
In the event any person or entity fails to deliver or transfer any
receivership 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 authorize and direct the United 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.
E. TRANSFER OF FUNDS TO THE RECEIVER
IT IS FURTHER ORDERED that, upon service of a copy of this Order, all
financial institutions, finance companies, commercial lending companies, credit card
processing agents or agents providing electronic funds transfer services or automated
clearing house processing, brokerage houses, escrow agents, money market or mutual funds,
title companies, commodity futures merchants, commodity trading companies, precious
metal dealers, trustees, or other financial institutions or depositories of any kind, shall
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cooperate with all reasonable requests of the Receiver relating to implementation of this
Order, including transferring funds at his or her direction and producing records related to the
assets of All Us Marketing LLC.
F. STAY OF ACTIONS
IT IS FURTHER ORDERED that:
I.
Except by leave of this Court, during pendency of the receivership
ordered herein, Defendants and all other persons and entities be and hereby are stayed from
taking any action to establish or enforce any claim, right, or interest for, against, on behalf of,
in, or in the name of, All Us Marketing LLC, any of its subsidiaries, affiliates, partnerships,
assets, documents, or the Receiver or the Receiver's duly authorized agents acting in their
capacities as such, including, but not limited to, the following actions:
a.
Commencing, prosecuting, continuing, entering, or enforcing
any suit or proceeding, except that such actions may be filed to toll any applicable statute of
limitations;
b.
Accelerating the due date of any obligation or claimed
obligation; filing, perfecting or enforcing any lien; taking or attempting to take possession,
custody, or control of any asset; attempting to foreclose, forfeit, alter, or terminate any
interest in any asset, whether such acts are part of a judicial proceeding, are acts of self-help,
or otherwise, or setoff of any debt owing to All Us Marketing LLC that arose before the date
of this Order against any claim against the All Us Marketing LLC;
c.
Executing, issuing, serving, or causing the execution, issuance
or service of, any legal process, including, but not limited to, attachments, garnishments,
26
subpoenas, writs of replevin, writs of execution, or any other form of process whether
specified in this Order or not; or
d.
Doing any act or thing whatsoever to interfere with the
Receiver taking custody, control, possession, or management 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 All Us Marketing LLC.
2.
This Order does not stay:
a.
The commencement or continuation of a criminal action or
b.
The commencement or continuation of an action or proceeding
proceeding;
by a governmental unit to enforce such governmental unit's police or regulatory power; or
c.
The enforcement of a judgment, other than a money judgment,
obtained in an action or proceeding by a governmental unit to enforce such governmental
unit's police or regulatory power.
3.
Except as otherwise provided in this Order, all persons and entities in
need of documentation from the Receiver shall in all instances first attempt to secure such
information by submitting a formal written request to the Receiver, and, if such request has
not been responded to within thirty (30) days of receipt by the Receiver, any such person or
entity may thereafter seek an Order of this Court with regard to the relief requested.
G. COMPENSATION OF RECEIVER
27
IT IS FURTHER ORDERED that the Receiver and all personnel hired by the
Receiver as herein authorized, including counsel to the Receiver and accountants, are entitled
to reasonable compensation for the performance of duties pursuant to this Order and for the
cost of actual out-of-pocket expenses incurred by them, from the assets now held by, or in the
possession or control of, or which may be received by t All Us Marketing LLC. The
Receiver shall file with the Court and serve on the parties periodic requests for the payment
of such reasonable compensation, with the first such request filed no more than sixty (60)
days after the date of this Order. The Receiver shall not increase the hourly rates used as the
bases for such fee applications without prior approval of the Court.
H. RECEIVER'S BOND
IT IS FURTHER ORDERED that the Receiver is not required to enter a bond,
conditioned that the Receiver will well and truly perform the duties of the office and abide by
and perform all acts the Court directs.
VIII.
ACCESS TO BUSINESS PREMISES
IT IS FURTHER ORDERED that All Us Marketing LLC and its officers, agents,
servants, employees, and attorneys, and all other persons 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, and the Receiver, shall allow Plaintiffs' representatives, agents, and assistants, as
well as the All Us Marketing LLC's representatives, and the Individual Defendants
themselves, reasonable access to all of All Us Marketing LLC's business premises, or any
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other premises where the All Us Marketing LLC conduct business or customer service
operations. Such locations include, but are not limited to, 5104 N. Orange Blossom Trail
#200, Orlando, Florida 32810, 8803 Futures Drive#IO, Orlando, Florida 32819, and 1200
W. State Road 434, Suites 216 and 226, Longwood, Florida 32750.
The purpose of this access shall be to inspect and copy any and all books, records,
documents, accounts, and other property owned by, or in the possession of, All Us Marketing
LLC or its agents. The Receiver shall have the discretion to determine the time, manner, and
reasonable conditions of such access. Plaintiffs may remove materials from All Us
Marketing LLC's business premises to inspect, inventory, and copy such materials. Plaintiffs
shall return materials so removed within five (5) business days of completing said inventory
and copying. Plaintiffs' access to the All Us Marketing LLC's documents pursuant to this
Section shall not provide grounds for any Defendant to object to any subsequent request for
documents served by any Plaintiff.
IX.
REPATRIATION OF ASSETS AND DOCUMENTS
IT IS FURTHER ORDERED that All Us Marketing LLC shall:
A.
Unless previously completed in full compliance with the TRO, within three
(3) business days following entry of this Order, take such steps as are necessary to repatriate
to the territory of the United States of America all documents and assets that are located
outside such territory and are held by or for All Us Marketing LLC or are under All Us
Marketing LLC' s direct or indirect control, jointly, severally, or individually;
B.
Unless previously completed in full compliance with the TRO, within three
29
(3) business days following entry of this Order, provide Plaintiffs with a full accounting of all
documents and assets that are located outside of the territory of the United States of America
or that have been transferred to the territory of the United States of America pursuant to
Subsection A above and are held by or for All Us Marketing LLC or are under All Us
Marketing LLC t's direct or indirect control, jointly, severally, or individually, including the
names and addresses of any foreign or domestic financial institution or other entity holding
the documents and assets, along with the account numbers and balances;
C.
Hold and retain all such documents and assets and prevent any transfer,
disposition, or dissipation whatsoever of any such documents or assets; and
D.
Unless previously completed in full compliance with the TRO, within three
(3) business days following entry of this Order, provide Plaintiffs access to All Us Marketing
LLC's records and documents held by financial institutions or other entities outside the
territory of the United States of America, by signing and delivering to Plaintiffs' counsel the
Consent to Release of Financial Records attached to this Order as Attachment A.
x.
INTERFERENCE WITH REPATRIATION
IT IS FURTHER ORDERED that Defendants are hereby 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 IX of this Order, including, but not limited to:
A.
Sending any statement, letter, facsimile, e-mail or wire transmission, or
telephoning or engaging in any other act, directly or indirectly, that results in a determination
30
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 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 assets have been fully repatriated pursuant to
the preceding Section of this Order.
XI.
EXPEDITED DISCOVERY
IT IS FURTHER ORDERED that pursuant to Federal Rules of Civil Procedure
30(a), 3 I (a), 34, and 45, and notwithstanding the provisions of Federal Rules of Civil
Procedure 26(d) and (f), 30(a)(2)(A), and 3 I (a)(2)(A), the parties are granted leave, at any
time after entry of this Order to:
A.
Take the deposition of any person, whether or not a party, for the purpose of
discovering the nature, location, status, and extent of the assets of All Us Marketing LLC and
All Us Marketing LLC's affiliates and subsidiaries; the nature and location of documents
reflecting the business transactions of All Us Marketing LLC and All Us Marketing LLC's
affiliates and subsidiaries; the location of any premises where All Us Marketing LLC,
directly or through any third party, conduct business operations; All Us Marketing LLC's
whereabouts; and/or the applicability of any evidentiary privileges to this action; and
B.
Demand the production of documents from any person, whether or not a party,
relating to the nature, status, and extent of the assets of All Us Marketing LLC, and All Us
31
Marketing LLC' s affiliates and subsidiaries; the nature and location of documents reflecting
the business transactions of All Us Marketing LLC, and All Us Marketing LLC 's affiliates
and subsidiaries; the location of any premises where All Us Marketing LLC, directly or
through any third party, conduct business operations; All Us Marketing LLC's whereabouts;
and/or the applicability of any evidentiary privileges to this action.
Three (3) days notice shall be deemed sufficient for any such deposition, five (5) days
notice shall be deemed sufficient for the production of any such documents, and twenty-four
(24) hours notice shall be deemed sufficient for the production of any such documents that
are maintained or stored only as electronic data. The provisions of this Section shall apply
both to parties to this case and to non-parties. The limitations and conditions set forth in
Federal Rules of Civil Procedure 30(a)(2)(A)(ii) and 3 l(a)(2)(A)(ii) regarding subsequent
depositions of an individual shall not apply to depositions taken pursuant to this Section.
Any such depositions taken pursuant to this Section shall not be counted toward any limit on
the number of depositions under the Federal Rules of Civil Procedure, including those set
forth in Federal Rules of Civil Procedure 30(a)(2)(A) and 31(a)(2)(A). Service of discovery
upon a party, taken pursuant to this Section, shall be sufficient if made through the means
described in Section XIII of this Order.
XII.
DISTRIBUTION OF ORDER BY ALL US MARKETING LLC
IT IS FURTHER ORDERED that All Us Marketing LLC shall immediately
32
provide a copy of this Order to each of ITS corporations, subsidiaries, affiliates, partners,
divisions, sales entities, successors, assigns, members, officers, directors, employees,
independent contractors, agents, servants, attorneys, spouses, representatives, and any other
persons in active concert or participation with them. Within five (5) calendar days following
entry of this Order, All Us Marketing LLC shall file with this Court and serve on Plaintiffs an
affidavit identifying the name, title, addresses, telephone numbers, date of
service, and manner of service of the persons and entities All Us Marketing LLC has served
with a copy of this Order in compliance with this provision.
XIII.
SERVICE OF THIS ORDER
IT IS FURTHER ORDERED that copies of this Order may be distributed by United
States First Class Mail, overnight delivery, facsimile, electronic mail, or personally, by
agents 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, document, or
asset of All Us Marketing LLC, 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.
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XIV.
CONSUMER REPORTING AGENCIES
IT IS FURTHER ORDERED that, pursuant to Section 604 of the Fair Credit
Reporting Act, 15 U.S.C. § 1681 b, any consumer reporting agency may furnish a consumer
or credit report concerning All Us Marketing LLC to Plaintiffs.
xv.
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:
James Davis
John Hallerud
Elizabeth Scott
Federal Trade Commission
55 West Monroe Street, Suite 1825
Chicago, Illinois 60603
(312) 960-5634 [Telephone]
(312) 960-5600 [Facsimile]
All correspondence and pleadings to the State of Florida, Office of the Attorney General,
shall be addressed to:
Denise Beamer
Assistant Attorney General
Office of the Attorney General
Consumer Protection Division
135 W. Central Boulevard, Suite 1000
Orlando, Florida 32801
(407) 245-0833 [Telephone]
(407) 245-0365 [Facsimile]
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XVI.
RETENTION OF JURISDICTION
IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this matter
for all purposes.
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ATTACHMENT A
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
FEDERAL TRADE COMMISSION, and
STATE OF FLORIDA, OFFICE OF THE
ATTORNEY GENERAL, DEPARTMENT OF
LEGAL AFFAIRS,
)
)
)
)
)
)
)
) Civil No. 6:15 CV 1016-0RL-28GJK
Plaintiffs,
)
)
)
)
)
)
v.
ALL US MARKETING LLC, et al.,
Defendants.
CONSENT TO RELEASE OF FINANCIAL INFORMATION
(city or province and country), do hereby direct any person, bank, savings and loan
association, credit union, depository institution, finance company, commercial lending
company, payment processor, payment processing entity, common carrier, customs broker,
commercial mail receiving agency, mail holding and/or forwarding company, brokerage
house, escrow agent, money market or mutual fund, title company, commodity trading
company, or trustee, that holds, controls or maintains custody of assets, wherever located,
that are owned or controlled by All Us Marketing LLC, in whole or in part, or at which All
Us Marketing LLC, has an account of any kind upon which I am authorized to draw, and its
officers, employees and agents, to disclose all information and deliver copies of all
36
documents of every nature in its possession or control which relate to the said accounts to
any attorney for Plaintiffs, and to give evidence relevant thereto, in the above captioned
matter, FTC and State of Florida v. All US Marketing LLC, et al.• now pending in the United
States District Court for the Middle District of Florida, and this shall be irrevocable authority
for so doing. This direction is intended to apply to the laws of countries other than the
United States of America which restrict or prohibit the disclosure of bank or other financial
information without the consent of the holder of the account, and shall be construed as
consent with respect thereto, and the same shall apply to any of the accounts for which I may
be the relevant principal.
[Signature]
[Print Name]
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