Case 1:20-cv-00177-JJM-PAS Document 15-1 Filed 09/25/20 .
CaseCase1:20-cv-00177-JJM-PAS1:20-cv-00177-JJM-PAS DocumentDocument15-116 FiledFiled09/25/2009/25/20 PagePage12ofof1314PageIDPageID#:#:256243UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLANDFEDERAL TRADE COMMISSION,CASE NO.1:20-cv-00177-JJM-PASPlaintiff,STIPULATED FINAL ORDERFOR PERMANENT INJUNCTIONV.PONTE INVESTMENTS, LLC, a limited liabilitycompany, also d/b/a SBA LOAN PROGRAM andd/b/a SBA LOAN PROGRAM.com, andJOHN C. PONTE, individually and as an officerof PONTE INVESTMENTS, LLC,Defendants.Plaintiff, the Federal Trade Commission ("Commission" or "FTC") filed its Complaint forPermanent Injunction And Other Equitable Relief ("Complaint") in this matter, pursuant toSection 13(b) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. §§ 53(b). TheCommission and Defendants stipulate to the entry of this Stipulated Final Order forPreliminary Injunction ("Order") to resolve all matters in dispute in this actions betweenthem.THEREFORE, IT IS ORDERED as follows:FINDINGS1. This Court has jurisdiction over this matter.2. The Complaint charges that Defendants participated in deceptive acts or practices inviolation of Section 5 of the FTC Act, 15 U .S.C §45( a), in connection with the1
CaseCase1:20-cv-00177-JJM-PAS1:20-cv-00177-JJM-PAS DocumentDocument15-116 FiledFiled09/25/2009/25/20 g, marketing, promotion, offering for sale, or sale of SBA-related products orservices, including Paycheck Protection Program loans.3. Defendants neither admit nor deny any of the allegations in the Complaint, except asspecifically stated in the Order. Only for purposes of this action, Defendants admit thefacts necessary to establish jurisdiction.4. Defendants waive any claim that they 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 agree to bear their own costs and attorney fees.5. Defendants waive all rights to appeal or otherwise challenge or contest the validity of thisOrder.I.DEFINITIONSFor the purpose of this Order, the following definitions shall apply:A. "Clear(ly) and conspicuous(ly)" means that a required disclosure is difficult to miss(i.e., easily noticeable) and easily understandable by ordinary consumers, including in all of thefollowing ways:1. In any communicatio n that is solely visual or solely audible, the disclosuremust be made through the same means through which the communication is presented. In anycommunicatio n made through both visual and audible means, such as a television advertisement,the disclosure must be presented simultaneously in both the visual and audible portions of thecommunicatio n even if the representation requiring the disclosure is made in only one means.2. A visual disclosure, by its size, contrast, location, the length of time it appears,and other characteristics, must stand out from any accompanying text or other visual elements sothat it is easily noticed, read, and understood.2
CaseCase1:20-cv-00177-JJM-PAS1:20-cv-00177-JJM-PAS DocumentDocument15-116 FiledFiled09/25/2009/25/20 PagePage34ofof1314PageIDPageID#:#:2582453. An audible disclosure, including by telephone or streaming video, must bedelivered in a volume, speed, and cadence sufficient for ordinary consumers to easily hear andunderstand it.4. In any communicatio n using an interactive electronic medium, such as theInternet or software, the disclosure must be unavoidable.5. The disclosure must use diction and syntax understandable to ordinaryconsumers and must appear in each language in which the representation that requires thedisclosure appears.6. The disclosure must comply with these requirements in each medium throughwhich it is received, including all electronic devices and face-to-face communicatio ns.7. The disclosure must not be contradicted or mitigated by, or inconsistent with,anything else in the communicatio n.8. When the representation or sales practice targets a specific audience, such aschildren, the elderly, or the terminally ill, "ordinary consumers" includes reasonable members ofthat group.B."Corporate Defendant" means Ponte Investments, LLC, a Rhode Island limitedliability company, also d/b/a SBA Loan Program and d/b/a SBALoanProg ram.com, and each oftheir subsidiaries, affiliates, successors, and assigns.C."Defendant(s)" means Individual Defendant and Corporate Defendant,individually, collectively, or in any combination.D. "Document" is synonymous in meaning and equal in scope to the usage of"document" and "electronically stored information" in Federal Rule of Civil Procedure 34(a),Fed. R. Civ. P. 34(a), and includes writings, drawings, graphs, charts, photographs, sound and3
CaseCase1:20-cv-00177-JJM-PAS1:20-cv-00177-JJM-PAS DocumentDocument15-116 FiledFiled09/25/2009/25/20 PagePage45ofof1314PageIDPageID#:#:259246video recordings, images, Internet sites, web pages, websites, electronic correspondence,including e-mail and instant messages, contracts, accounting data, advertisements, FTP Logs,Server Access Logs, books, written or printed records, handwritten notes, telephone logs,telephone scripts, receipt books, ledgers, personal and business canceled checks and checkregisters, bank statements, appointment books, computer records, customer or sales databasesand any other electronically stored information, including Documents located on remote serversor cloud computing systems, and other data or data compilations from which information can beobtained directly or, if necessary, after translation into a reasonably usable form. A draft or nonidentical copy is a separate document within the meaning of the term.E."Individual Defendant" means John C. Ponte.F."SBA" means United States Small Business Administration.ORDERI.PROHIBITION ON MISREPRESENT ATIONSIT IS THEREFORE ORDERED that Defendants, Defendants' officers, agents,employees, and attorneys, and all other persons in active concert or participation with them, whoreceive actual notice of this Order, whether acting directly or indirectly, in connection with theadvertising, marketing, promoting, or offering for sale any product or service, are permanentlyrestrained and enjoined from misrepresenting or assisting others in misrepresenting, expressly orby implication, including through the use of a trade name, product name, or domain name:A. that Defendants are authorized (1) to make loans, including SBA loans, or (2) toaccept or process applications for any assistance, including SBA assistance;B.that Defendants are the SBA, or are affiliated or otherwise associated with, orendorsed, sponsored, or approved by, SBA or the United States government; and4
CaseCase1:20-cv-00177-JJM-PAS1:20-cv-00177-JJM-PAS DocumentDocument15-116 FiledFiled09/25/2009/25/20 PagePage56ofof1314PageIDPageID#:#:260247C.any other fact material to consumers, such as: the total cost, any material restrictions,limitations, or conditions; or any material aspect of its performance, efficacy, nature or centralcharacteristic.II.CUSTOMER INFORMATIONIT IS FURTHER ORDERED that Defendants, Defendants' officers, agents, andemployees, and all other persons in active concert or participation with any of them, whetheracting directly or indirectly, are hereby permanently restrained and enjoined from directly orindirectly:A. failing to provide sufficient customer information to enable the Commission toefficiently administer consumer redress. Defendants represent that they have provided thisredress information to the Commission. If a representative of the Commission requests inwriting any information related to redress, Defendants must provide it, in the form prescribed bythe Commission, within fourteen (14) days;B. disclosing, using, or benefitting from customer information, including the name,address, telephone number, email address, social security number, other identifying information,or any data that enables access to a customer's account (including a credit card, bank account, orother financial account), that any Defendant obtained prior to entry of this Order in connectionwith the advertising, marketing, promotion, offering for sale, or sale of SBA-related products orservices, including Paycheck Protection Program loans;Provided, however, that Section II.B shall not prohibit the transfer or disclosure of aconsumer's information, or Defendants from benefitting or using such information, if necessaryto provide the consumer with a requested product or service and the consumer has providedexpress, informed consent to the transfer or disclosure;5
CaseCase1:20-cv-00177-JJM-PAS1:20-cv-00177-JJM-PAS DocumentDocument15-116 FiledFiled09/25/2009/25/20 PagePage67ofof1314PageIDPageID#:#:261248C. failing to destroy such customer information in all forms in their possession, custody, orcontrol within thirty (30) days after receipt of written direction to do so from a representativeof the Commission;Provided, however, that customer information need not be disposed of, and may bedisclosed, to the extent requested by a government agency or required by law, regulation, orcourt order.III.ORDER ACKNOWLEDGMENTSIT IS FURTHER ORDERED that Defendants obtain acknowledgments of receipt ofthis Order:A.Each Defendant, within seven (7) days of entry of this Order, must submit to theCommission an acknowledgment of receipt of this Order sworn under penalty of perjury.B.For five (5) years after entry of this Order, each Individual Defendant for anybusiness that such Defendant, individually or collectively with any other Defendants, is themajority owner or controls directly or indirectly, and each Corporate Defendant, must deliver acopy of this Order to: (1) all principals, officers, directors, and LLC managers and members; (2)all employees having managerial responsibilities for conduct related to the subject matter of theOrder; and all agents and representatives who participate in conduct related to the subject matterof the Order; and (3) any business entity resulting from any change in structure as set forth in theSection titled Compliance Reporting. Delivery must occur within seven (7) days of entry of thisOrder for current personnel. For all others, delivery must occur before they assume theirresponsibilities.6
CaseCase1:20-cv-00177-JJM-PAS1:20-cv-00177-JJM-PAS DocumentDocument15-116 FiledFiled09/25/2009/25/20 PagePage78ofof1314PageIDPageID#:#:262249C.From each individual or entity to which a Defendant delivered a copy of this Order,that Defendant must obtain, within thirty (30) days, a signed and dated acknowledgment ofreceipt of this Order.IV.COMPLIANCE REPORTINGIT IS FURTHER ORDERED that Defendants make timely submissions to theCommission:A. One year after entry of this Order, each Defendant must submit a compliance report,sworn under penalty of perjury:l.Each Defendant must: (a) identify the primary physical, postal, and email addressand telephone number, as designated points of contact, which representatives of the Commissionmay use to communicate with Defendant; (b) identify all of that Defendant's businesses by all oftheir names, telephone numbers, and physical, postal, email, and Internet addresses; (c) describethe activities of each business, including the products or services offered, the means ofadvertising, marketing, and sales, any websites where its products or services are being sold oradvertised, and the involvement of any other Defendant (which Individual Defendants mustdescribe if they know or should know due to their own involvement); (d) describe in detailwhether and how that Defendant is in compliance with each Section of this Order; and (e)provide a copy of each Order Acknowledgment obtained pursuant to this Order, unlesspreviously submitted to the Commission.2.Additionally, each Individual Defendant must: (a) identify all telephone numbersand all physical, postal, email and Internet addresses, including all residences; (b) identify allbusiness activities, including any business for which such Defendant performs services whetheras an employee or otherwise and any entity in which such Defendant has any ownership interest;7
CaseCase1:20-cv-00177-JJM-PAS1:20-cv-00177-JJM-PAS DocumentDocument15-116 FiledFiled09/25/2009/25/20 PagePage89ofof1314PageIDPageID#:#:263250and (c) describe in detail such Defendant's involvement in each such business, including title,role, responsibilities, participation, authority, control, and any ownership.B.For fifteen (15) years after entry of this Order, each Defendant must submit acompliance notice sworn under penalty of perjury, within fourteen (14) days of any change in thefollowing:1.Each Defendant must report any change in: (a) any designated point of contact;or (b) the structure of any Corporate Defendant or any entity that Defendant has any ownershipinterest in or controls directly or indirectly that may affect compliance obligations arising underthis Order, including: creation, 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, each Individual Defendant must report any change in: (a) name,including aliases or fictitious name, or residence address; or (b) title or role in any businessactivity, including any business for which such Defendant performs services whether as anemployee or otherwise and any entity in which such Defendant has any ownership interest, andidentify the name, physical address, and any Internet address of the business or entity.C.Each Defendant must submit to the Commission notice of the filing of anybankruptcy petition, insolvency proceeding, or similar proceeding by or against such Defendantwithin fourteen (14) days of its filing.D. Any submission to the Commission required by this Order to be sworn under penaltyof 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 theforegoing is true and correct. Executed on: " and supplying the date, signatory's fullname, title (if applicable), and signature.8
CaseCase1:20-cv-00177-JJM-PAS1:20-cv-00177-JJM-PAS DocumentDocument15-116 FiledFiled 09/25/2009/25/20 PagePage 910ofof1314PageIDPageID#:#:264251E.Unless otherwise directed by a Commission representative in writing, allsubmissions to the Commission pursuant to this Order must be emailed to DEbrief@ftc.gov orsent by overnight courier (not the U.S. Postal Service) to: Associate Director for Enforcement,Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW,Washington, DC 20580. The subject line must begin: FTC v. Ponte Investments, LLC, et al.V.RECORDKEEPINGIT IS FURTHER ORDERED that Defendants must create certain records for fifteen(15) years after entry of the Order, and retain each such record for five (5) years. Specifically,Corporate Defendant in connection with the advertising o f any government loan program andeach Individual Defendant for any business that such Defendant, individually or collectively withany other Defendants, is a majority owner or controls directly or indirectly, must create andretain the following records:A. accounting records showing the revenues from all products or services sold;B.personnel records showing, for each person providing services, whether as anemployee or otherwise, that person's: name; addresses; telephone numbers; job title or position;dates of service; and (if applicable) the reason for termination;C.records of all consumer complaints and refund requests, whether received directly orindirectly, such as through a third party, and any response;D. all records necessary to demonstrate full compliance with each provision of thisOrder, including all submissions to the Commission; andE.a copy of each unique advertisement or other marketing material.9
CaseCase1:20-cv-00177-JJM-PAS1:20-cv-00177-JJM-PAS DocumentDocument15-116 FiledFiled09/25/2009/25/20 IANCE MONITORINGIT IS FURTHER ORDERED that, for the purpose of monitoring Defendantscompliance with this Order and any failure to transfer any assets as required by this Order:A.Within 14 days of receipt of a written request from a representative of theCommission, each Defendant must: submit additional compliance reports or other requestedinformation, which must be sworn under penalty of perjury; appear for depositions; and producedocuments for inspection and copying. The Commission is also authorized to obtain discovery,without further leave of court, using any of the procedures prescribed by Federal Rules of CivilProcedure 29, 30 (including telephonic depositions), 31, 33, 34, 36, 45, and 69.B.For matters concerning this Order, the Commission is authorized to communicatedirectly with each Defendant. Defendant must permit representatives of the Commission tointerview any employee or other person affiliated with any Defendant who has agreed to such aninterview. The person interviewed may have counsel present.C.The Commission may use all other lawful means, including posing, through itsrepresentatives as consumers, suppliers, or other individuals or entities, to Defendants or anyindividual or entity affiliated with Defendants, without the necessity of identification or priornotice. Nothing in this Order limits the Commission's lawful use of compulsory process,pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b-1.D.Upon written request from a representative of the Commission, any consumerreporting agency must furnish consumer reports concerning Individual Defendants, pursuant toSection 604(1) of the Fair Credit Reporting Act, 15 U.S.C. §1681b(a)(l).VII.RETENTION OF JURISDICTIONIT IS FURTHER ORDERED that this Court retains jurisdiction of this matter forpurposes of construction, modification, and enforcement of this Order.10
CaseCase1:20-cv-00177-JJM-PAS1:20-cv-00177-JJM-PAS DocumentDocument15-116 FiledFiled09/25/2009/25/20 USO ORDERED this 25thday of, 2020.John J. McConnell, Chief JudgeUnited States District Court for theDistrict of Rhode Island11
CaseCase1:20-cv-00177-JJM-PAS1:20-cv-00177-JJM-PAS DocumentDocument15-116 FiledFiled09/25/2009/25/20 PagePage1213ofof1314PageIDPageID#:#:267254SO STIPULATED AND AGREED:FOR PLAINTIFF:Date: 9/24/2020Thomas Widor, AttorneyFederal Trade CommissionWashington, DC 20580Phone: 202-326-3039Fax: 202-326-3768Email: twidor@ftc.govSanya Shahrasbi, AttorneyFederal Trade CommissionWashington, DC 20580Phone: 202-326-2709Fax: 202-326-3768Email: sshahrasbi@ftc.govDaniel Dwyer, AttorneyFederal Trade CommissionWashington, DC 20580Phone: 202-326-2957Fax: 202-326-3768Email: ddwyer@ftc.gov12
CaseCase1:20-cv-00177-JJM-PAS1:20-cv-00177-JJM-PAS DocumentDocument15-116 FiledFiled09/25/2009/25/20 PagePage1314ofof1314PageIDPageID#:#:268255Date: OC- · .:2 lo2oCHRISTOPHER M. ULHEARN (#5188)Law Office of Christopher M. Mulhearn, Inc.1300 Division Road, Suite 304West Warwick, RI 02893Phone: (401) 533-9330Email : cmulhearn@mulhearnlawri.com12
Case 1:20-cv-00177-JJM-PAS Document 15-1 Filed 09/25/20 Page 3 of 14 PageID #: 244Case 1:20-cv-00177-JJM-PAS Document 16 Filed 09/25/20 Page 2 of 13 PageID #: 257 advertising, marketing, promotion, offering for sale, or sale of SBA-related products or
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