FEDERAL TRADE COMMISSION et al v. XXL IMPRESSIONS LLC et al

Filing 26

STIPULATED FINAL JUDGMENT AND ORDER FOR PERMANENT INJUNCTION AND OTHER EQUITABLE RELIEF granting 5 Motion for Approval of Settlement as to Brazos Minshew aka Samuel Brant By JUDGE NANCY TORRESEN. (MMB) Modified on 3/10/2017 to add the full text of the order (mnw).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
_______________________________________
)
)
)
)
Plaintiffs,
)
)
v.
)
)
)
XXL IMPRESSIONS LLC, a limited liability
)
company, also d/b/a BETTER HEALTH
)
NUTRITIONALS,
)
)
JEFFREY R. POWLOWSKY, individually
)
and as an owner and officer of XXL
)
IMPRESSIONS LLC,
)
)
J2 RESPONSE L.L.P., a limited liability
)
partnership, also d/b/a J2 RESPONSE,
)
)
JUSTIN BUMANN, individually
)
and as a partner of J2 RESPONSE L.L.P.,
)
)
JUSTIN STEINLE, individually and as a
)
partner of J2 RESPONSE L.L.P.,
)
)
SYNERGIXX, LLC, a limited liability
)
company, also d/b/a CTF MEDIA,
)
)
CHARLIE R. FUSCO, individually
)
and as an owner and officer of SYNERGIXX,
)
LLC,
)
)
RONALD JAHNER, and
)
)
BRAZOS MINSHEW a/k/a SAMUEL BRANT, )
)
Defendants.
)
_______________________________________ )
FEDERAL TRADE COMMISSION and
STATE OF MAINE,

Case No.

STIPULATED FINAL JUDGMENT
AND ORDER FOR PERMANENT
INJUNCTION AND OTHER
EQUITABLE RELIEF AS TO
DEFENDANT BRAZOS MINSHEW,
A/K/A SAMUEL BRANT

Plaintiffs, the Federal Trade Commission (“FTC” or “Commission”) and the State of
Maine, as represented in this matter by the Office of the Attorney General of Maine (“Maine
AG”) (“Plaintiffs”), filed a Complaint for Permanent Injunction and Other Equitable Relief
against Defendants pursuant to Section 13(b) of the Federal Trade Commission Act (“FTC Act”),
15 U.S.C. § 53(b), and pursuant to Section 209 of the Maine Unfair Trade Practices Act (“Maine
UTPA”), ME. REV. STAT. tit. 5, § 209, to obtain permanent injunctive relief, rescission or
reformation of contracts, restitution, the refund of monies paid, disgorgement of ill-gotten
monies, and other equitable relief for Defendant’s acts or practices in violation of Sections 5(a)
and 12 of the FTC Act, 15 U.S.C. §§ 45(a) and 52, and in violation of Section 207 of the Maine
UTPA, ME. REV. STAT. tit. 5, § 207, in connection with the labeling, advertising, marketing,
distribution, and sale of products that purported to provide relief from back and joint pain and to
prevent or mitigate cognitive decline.
The Commission, the State of Maine, and Defendant Brazos Minshew, a/k/a Samuel
Brant (“Defendant Minshew”) stipulate to the entry of this Final Judgment and Order for
Permanent Injunction and Other Equitable Relief as to Defendant Minshew.
FINDINGS
1.

This Court has jurisdiction over this matter.

2.

The Complaint charges that Defendant Minshew participated in deceptive acts or

practices in violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.C. §§ 45(a) and 52, and in
violation of Section 207 of the Maine UTPA, ME. REV. STAT. tit. 5, § 207, in connection with the
advertising, marketing, distribution, and sale of dietary supplements that purported to provide
pain relief and to prevent or mitigate cognitive decline.

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3.

Defendant Minshew neither admits nor denies any of the allegations in the

Complaint, except as specifically stated in this Order. Defendant Minshew admits the facts
necessary to establish jurisdiction only for purposes of this action.
4.

Defendant Minshew waives any claim that he may have under the Equal Access

to Justice Act, 28 U.S.C. § 2412, concerning the prosecution of this action through the date of
this Order, and agrees to bear his own costs and attorney fees.
5.

Defendant Minshew and Plaintiffs waive all rights to appeal or otherwise

challenge or contest the validity of this Order.
DEFINITIONS
For the purpose of this Order, the following definitions apply:
1.

“Defendant” means Brazos Minshew, a/k/a Samuel Brant.

2.

“Covered Product” means any Dietary supplement, Food, or Drug, including but

not limited to CogniPrin.
3.

“Dietary supplement” means:
A.

any product labeled as a dietary supplement or otherwise represented as a
dietary supplement; or

B.

any pill, tablet, capsule, powder, softgel, gelcap, liquid, or other similar
form containing one or more ingredients that are a vitamin, mineral, herb
or other botanical, amino acid, probiotic, or other dietary substance for use
by humans to supplement the diet by increasing the total dietary intake, or
a concentrate, metabolite, constituent, extract, or combination of any
ingredient described above, that is intended to be ingested, and is not

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represented to be used as a conventional food or as a sole item of a meal
or the diet.
4.

“Drug” means: (1) articles recognized in the official United States

Pharmacopoeia, official Homoeopathic Pharmacopoeia of the United States, or official National
Formulary, or any supplement to any of them; (2) articles intended for use in the diagnosis, cure,
mitigation, treatment, or prevention of disease in humans or other animals; (3) articles (other
than food) intended to affect the structure or any function of the body of humans or other
animals; and (4) articles intended for use as a component of any article specified in (1), (2), or
(3); but does not include devices or their components, parts, or accessories.
5.

“Essentially Equivalent Product” means a product that contains the identical

ingredients, except for inactive ingredients (e.g., binders, colors, fillers, excipients), in the same
form and dosage, and with the same route of administration (e.g., orally, sublingually), as the
Covered Product; provided that the Covered Product may contain additional ingredients if
reliable scientific evidence generally accepted by experts in the field indicates that the amount
and combination of additional ingredients is unlikely to impede or inhibit the effectiveness of the
ingredients in the Essentially Equivalent Product.
6.

“Food” means: (1) any article used for food or drink for humans or other

animals; (2) chewing gum; and (3) any article used for components of any such article.
7.

“Including” means including but not limited to.

8.

“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.

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I.
PROHIBITED REPRESENTATIONS: MITIGATION OF COGNITIVE DECLINE,
MEMORY IMPROVEMENT, AND DISEASE CLAIMS
IT IS HEREBY ORDERED that Defendant, Defendant’s officers, agents, employees,
and attorneys, and all other persons in active concert or participation with any of them, who
receive actual notice of this Order, whether acting directly or indirectly, in connection with the
manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of any
Covered Product, are permanently restrained and enjoined from making, or assisting others in
making, expressly or by implication, including through the use of a product name, endorsement,
depiction, or illustration, any representation, that, in humans, such Covered Product:
A.

Reverses, mitigates, or prevents cognitive or mental decline;

B.

Improves memory;

C.

Restores lost memory capacity; or

D.

Cures, mitigates, or treats any disease;

unless the representation is non-misleading and, at the time of making such representation, they
possess and rely upon competent and reliable scientific evidence substantiating that the
representation is true. For purposes of this Section, competent and reliable scientific evidence
shall consist of human clinical testing of the Covered Product, or of an Essentially Equivalent
Product, that is sufficient in quality and quantity based on standards generally accepted by
experts in the relevant disease, condition, or function to which the representation relates, when
considered in light of the entire body of relevant and reliable scientific evidence, to substantiate
that the representation is true. Such testing must be: (1) randomized, double-blind, and placebocontrolled; and (2) conducted by researchers qualified by training and experience to conduct

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such testing. Persons covered by this section have the burden of proving that a product satisfies
the definition of Essentially Equivalent Product.
II.
PROHIBITED REPRESENTATIONS: OTHER HEALTH-RELATED CLAIMS
IT IS FURTHER ORDERED that Defendant, Defendant’s officers, agents, employees,
and attorneys, and all other persons in active concert or participation with any of them, who
receive actual notice of this Order, whether acting directly or indirectly, in connection with the
manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of any
Covered Product, other than a representation covered under the Section of this Order titled
Prohibited Representations: Mitigation Of Cognitive Decline, Memory Improvement, And
Disease Claims, are permanently restrained and enjoined from making, or assisting others in
making, expressly or by implication, including through the use of a product name, endorsement,
depiction, or illustration, any representation about the health benefits, safety, performance, or
efficacy of any Covered Product, unless the representation is non-misleading, and, at the time of
making such representation, they possess and rely upon competent and reliable scientific
evidence that is sufficient in quality and quantity based on standards generally accepted by
experts in the relevant disease, condition, or function to which the representation relates, when
considered in light of the entire body of relevant and reliable scientific evidence, to substantiate
that the representation is true.
For purposes of this Section, competent and reliable scientific evidence means tests,
analyses, research, or studies (1) that have been conducted and evaluated in an objective manner
by experts in the relevant disease, condition, or function to which the representation relates;
(2) that are generally accepted by such experts to yield accurate and reliable results; and (3) that

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are randomized, double-blind, and placebo-controlled human clinical testing of the Covered
Product, or of an Essentially Equivalent Product, when such experts would generally require
such human clinical testing to substantiate that the representation is true. Persons covered by this
section have the burden of proving that a product satisfies the definition of Essentially
Equivalent Product.
III.
PROHIBITED REPRESENTATIONS REGARDING TESTS, STUDIES,
OR INGREDIENTS
IT IS FURTHER ORDERED that Defendant, Defendant’s officers, agents, employees,
and attorneys, and all other persons in active concert or participation with any of them, who
receive actual notice of this Order, whether acting directly or indirectly, in connection with the
manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of any
Covered Product are permanently restrained and enjoined from misrepresenting, in any manner,
expressly or by implication, including through the use of any product, endorsement, depiction, or
illustration:
A.

That any Covered Product is clinically proven to restore or improve memory, or
mitigate cognitive decline;

B.

That the performance or benefits of any Covered Product are scientifically
proven or otherwise established; or

C.

The existence, contents, validity, results, conclusions, or interpretations of any
test, study, or other research.
IV.
FDA-APPROVED CLAIMS

IT IS FURTHER ORDERED that nothing in this Order prohibits Defendant,
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Defendant’s officers, agents, employees, and attorneys, or all other persons in active concert or
participation with any of them, from:
A.

For any drug, making any representation that is approved in labeling for such drug
under any tentative final or final monograph promulgated by the Food and Drug
Administration, or under any new drug application approved by the Food and
Drug Administration; and

B.

For any product, making a representation that is specifically authorized for use in
labeling for such product by regulations promulgated by the Food and Drug
Administration pursuant to the Nutrition Labeling and Education Act of 1990 or
permitted under Sections 303-304 of the Food and Drug Administration
Modernization Act of 1997.
V.
PROHIBITED REPRESENTATIONS
AS AN EXPERT ENDORSER

IT IS FURTHER ORDERED that Defendant, Defendant’s officers, agents, employees,
and attorneys, and all other persons in active concert or participation with any of them, who
receive actual notice of this Order, whether acting directly or indirectly, in connection with the
manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of any
Covered Product are permanently restrained and enjoined from making, directly or by
implication, any representations as an expert endorser, including, but not limited to, the
representations covered by the Sections of this Order titled Prohibited Representations:
Mitigation Of Cognitive Decline, Memory Improvement, And Disease Claims (Section I) and
Prohibited Representations: Other Health-Related Claims (Section II), above, unless he
possesses the represented expertise and he possesses and relies upon:
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A.

Competent and reliable scientific evidence required for the particular
representation, as set forth in Sections I and II, above; and

B.

An actual exercise of the represented expertise, in the form of an
evaluation or test of such product conducted and evaluated in an objective
manner and which is generally accepted in the relevant profession to yield
accurate and reliable results.
VI.
COOPERATION WITH FTC AND MAINE

IT IS FURTHER ORDERED that Defendant must fully cooperate with representatives
of the Commission, the Maine AG, and any of their representatives in this case and in any
investigation related to or associated with the transactions or the occurrences that are the subject
of the Complaint. Defendant must provide truthful and complete information, evidence, and
testimony. Defendant must appear for interviews, discovery, hearings, trials, and any other
proceedings that a representative of the Commission or the Maine AG may reasonably request
upon 5 days’ written notice, or other reasonable notice, at such places and times as a
Commission or Maine AG representative may designate, without the service of a subpoena.
VII.
ORDER ACKNOWLEDGMENTS
IT IS FURTHER ORDERED that Defendant acknowledge receipt of this Order within
7 days of entry of this Order. Such acknowledgment must be sworn under penalty of perjury and
must be submitted to the Commission and the State of Maine upon receipt of this Order.
Additionally,
A.

For 10 years after entry of this Order, Defendant must, for any

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business involved in the sale or marketing of any Covered Product that Defendant
is the majority owner or controls directly or indirectly, must deliver a copy of this
Order to:
1.

All principals, officers, directors, and LLC managers and members;

2.

All employees, agents, and representatives who participate in the labeling,
advertising, marketing, distribution, or sale of any Covered Product or
service; and

3.

Any business entity resulting from any change in structure as set forth in
the Section titled Compliance Reporting.

Delivery must occur within 7 days of entry of this Order for current personnel. For all
others, delivery must occur before they assume their responsibilities.
B.

From each individual or entity to which Defendant delivered a copy of this
Order, Defendant must obtain, within 30 days, a signed and dated
acknowledgment of receipt of this Order.
VIII.
COMPLIANCE REPORTING

IT IS FURTHER ORDERED that Defendant make timely submissions to the
Commission and to the Maine AG:
A.

60 days after entry of this Order, Defendant must submit a compliance
report, sworn under penalty of perjury:

1.

Defendant must: (a) identify the primary physical, postal, and
email address and telephone number as designated points of contact,
which Plaintiffs’ representatives may use to communicate with Defendant;

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(b) identify all of Defendant’s businesses by all of their names, telephone
numbers, and physical, postal, email, and Internet addresses; (c) describe
the activities of each business, including the goods and services offered,
the means of advertising, marketing, and sales, and the involvement of any
other Defendant (which Defendant must describe if he knows or should
know due to his own involvement); (d) describe in detail whether and how
Defendant is in compliance with each Section of this Order; and
(e) provide a copy of each Order Acknowledgment obtained pursuant
to this Order, unless previously submitted to Plaintiffs.

2.

Additionally, Defendant must: (a) identify all telephone numbers and all
physical, postal, email, and Internet addresses, including all residences;
(b) identify all business activities, including any business for which
Defendant performs services whether as an employee or otherwise and any
entity in which Defendant has any ownership interest; and (c) describe in
detail Defendant’s involvement in each such business, including title, role,
responsibilities, participation, authority, control, and any ownership.

B.

For 10 years after entry of this Order, Defendant must submit a compliance
notice, sworn under penalty of perjury, within 14 days of any change in the
following:
1.

Defendant must report any change in: (a) any designated point of contact;
(b) the structure of any corporation or any entity that Defendant has any
ownership interest in or control, directly or indirectly, that may affect
compliance obligations arising under this Order, including: creation,

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merger, sale, or dissolution of the entity or any subsidiary, parent, or
affiliate that engages in any acts or practices subject to this Order.
2.

Additionally, Defendant must report any change in: (a) names, including
aliases or fictitious names, or residence addresses; or (b) titles or roles in
any business activity, including any business for which Defendant
performs services whether as an employee or otherwise and any entity in
which Defendant has any ownership interest, and identify the name,
physical address, and any Internet address of the business or entity.

C.

For a period of 10 years, Defendant must submit to the Commission and
the Maine AG notice of the filing of any bankruptcy petition, insolvency
proceeding, or similar proceeding by or against Defendant within 14
days of its filing.

D.

Any submission to the Commission or the Maine AG required by this Order
to be sworn under penalty of perjury must be true and accurate and comply with
28 U.S.C. § 1746, such as by concluding: “I declare under penalty of perjury
under the laws of the United States of America that the foregoing is true and
correct. Executed on: ________” and supplying the date, signatory’s full name,
title (if applicable), and signature.

E.

Unless otherwise directed by a Commission representative in writing, all
submissions to the Commission pursuant to this Order must be emailed to
[e-mail] or sent by overnight courier (not the U.S. Postal Service) to:
Associate Director for Enforcement, Bureau of Consumer Protection, Federal
Trade Commission, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580.

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The subject line must begin: FTC v. XXL Impressions LLC et al., and the number
X____________.
F.

Unless otherwise directed by a Maine AG representative in writing, all
submissions to the Maine AG pursuant to this Order must be sent by
overnight courier (not the U.S. Postal Service) to: Office of the Attorney General
of Maine, Consumer Protection Division, 111 Sewall Street, 6th Floor, Augusta,
ME 04330. The subject line must begin: Order in re State of Maine v.
XXL Impressions LLC et al. and must identify the Court and docket number of
this Order as ordered by the Court.
IX.
RECORDKEEPING

IT IS FURTHER ORDERED that in connection with the sale of any Covered Product,
Defendant must create certain records for 10 years after entry of the Order, and retain each such
record for 5 years. Specifically, Defendant must, for any business that Defendant is a majority
owner or controls, directly or indirectly, must create and retain the following records:
A.

Accounting records showing the revenues from all goods or services sold, all
costs incurred in generating those revenues, and the resulting net profit or loss;

B.

Personnel records showing, for each person providing services, whether as an
employee or otherwise, that person’s: name; address; telephone numbers; job title
or position; dates of service; and (if applicable) the reason for termination;

C.

Complaints and full or partial refund requests, whether received directly or
indirectly, such as through a third party, and any response;

D.

All records necessary to demonstrate full compliance with each provision of this

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Order, including all submissions to the Commission and the Maine AG; and
E.

A copy of each unique advertisement or other marketing material.
X.
COMPLIANCE MONITORING

IT IS FURTHER ORDERED that, for the purpose of monitoring Defendant’s
compliance with this Order:
A.

Within 14 days of receipt of a written request from a representative of
the Commission or the Maine AG, Defendant must: submit additional
compliance reports or other requested information, which must be sworn under
penalty of perjury; appear for depositions; and produce documents for inspection
and copying. Plaintiffs are also authorized to obtain discovery, without further
leave of court, using any of the procedures prescribed by Federal Rules of Civil
Procedure 29, 30 (including telephonic depositions), 31, 33, 34, 36, 45, and 69.

B.

For matters concerning this Order, the Plaintiffs are authorized to
communicate directly with Defendant. Defendant must permit Plaintiffs’
representatives to interview any employee or other person affiliated with
Defendant who has agreed to such an interview. The person interviewed may
have counsel present.

C.

Plaintiffs may use all other lawful means, including posing, through their
representatives, as consumers, suppliers, or other individuals or entities, to
Defendant or any individual or entity affiliated with Defendant, without the
necessity of identification or prior notice. Nothing in this Order limits the
Commission’s lawful use of compulsory process, pursuant to Sections 9 and 20 of

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the FTC Act, 15 U.S.C. §§ 49, 57b-1. Nothing in this Order limits the
Maine AG’s lawful use of compulsory process, pursuant to section 211 of the
Maine UTPA, ME. REV. STAT. tit. 5, § 211. Defendant hereby consents to the
disclosure by the Maine AG to any law enforcement agency and any
representative of the State of Maine of any material or information produced by
Defendant pursuant to section 211 of the Maine UTPA, whether produced before
or after the date of this Order.
D.

Upon written request from a representative of the Commission or the State of
Maine, any consumer reporting agency must furnish consumer reports concerning
Defendant Minshew, pursuant to Section 604(1) of the Fair Credit Reporting Act,
15 U.S.C. §1681b(a)(1).

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XI.
RETENTION OF JURISDICTION
IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this matter for
purposes of construction, modification, and enforcement of this Order.
IT IS SO ORDERED this 10th day of March, 2017.

/s/ Nancy Torresen_________________
United States Chief District Judge

IT IS SO STIPULATED this 15 day of February, 2017.
DAVID C. SHONKA
Acting General Counsel
/s/ James A. Prunty
James A. Prunty
David P. Frankel
Federal Trade Commission
600 Pennsylvania Avenue, NW
Washington, D.C. 20580
Telephone: [phone], 2812
Facsimile: 202-326-3259
Email: [e-mail]
[e-mail]
Attorneys for Plaintiff
FEDERAL TRADE COMMISSION

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IT IS SO STIPULATED this 15 day of February, 2017.
JANET T. MILLS
Attorney General, State of Maine
/s/ Brendan F.X. O’Neil
Brendan F.X. O’Neil
Assistant Attorney General
Office of the Attorney General of Maine
6 State House Station
Augusta, Maine 04333-0006
Telephone: [phone]
Facsimile: 207-624-7730
Email: [e-mail]

IT IS SO STIPULATED this 10 day of February, 2017.

/s/ Brazos Minshew
Defendant Brazos Minshew
Pro Se
2126 S. 48th Street
Coolidge, Arizona 85128

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