Case: 1:17-cv-07790 Document #: 340 Filed: 04/10/19 Page 1 Of 14 PageID .
Case: 1:17-cv-07790 Document #: 340 Filed: 04/10/19 Page 1 of 14 PageID #:3663 ·l STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION FEDERAL TRADE COMMISSION, Plaintiff, v. ) ) ) ) Case No. 1: l 7-cv-07790 ) Judge John Z. Lee ) Magistrate Judge M. David Weisman ) Al JANITORIAL SUPPLY CORP., ) a dissolved Illinois corporation, also doing ) business as A One Janitorial, ) CENTURY MANUFACTURING CORP., a New York corporation, also doing business as A-1 Janitorial Supply, COMMERCIAL MAINTENANCE CHEMICAL CORP., a New York corporation, also doing business as CMC, GLOBAL DIRECT RESOURCES, INC., a New York corporation, also doing business as A-1 Janitorial, Century Manufacturing, Commercial Maintenance Chemical, and Target Supplies, ERIC STERNBERG, individually and as an officer of Al Janitorial Supply Corp., Century Manufacturing Corp., Commercial Maintenance Chemical Corp., and Global Direct Resources, Inc., and MATTHEW STERNBERG, individually and as an officer of Century Manufacturing Corp. and Commercial Maintenance Chemical Corp., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ·1 ·1
Case: 1:17-cv-07790 Document #: 340 Filed: 04/10/19 Page 2 of 14 PageID #:3664 ·i FINAL JUDGMENT AND ORDER FOR PERMANENT INJUNCTION AND OTHER EQUITABLE RELIEF Plaintiff, the Federal Trade Commission ("Commission" or "FTC"), filed its Complaint for Permanent Injunction and Other Equitable Relief ("Complaint") in this matter, pursuant to Section 13(b) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 53(b), the Telemarketing and Consumer Fraud and Abuse Prevention Act ("Telemarketing Act"), 15 U.S.C. §§ 6101-6108, and the Unordered Merchandise Statute, 39 U.S.C. § 3009. The Commission and Defendants stipulate to the entry of this Stipulated Final Judgment and Order for Permanent Injunction and Other Equitable Relief ("Order") to resolve all matters in dispute in this action between them. 'I THEREFORE, IT IS ORDERED as follows: FINDINGS I. This Court has jurisdiction over this matter. 2. The Complaint charges that Defendants participated in acts or practices that violate Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), the FTC's Trade Regulation Rule entitled "Telemarketing Sales Rule" {"TSR"), 16 C.F .R. Part 310, and the Unordered Merchandise Statute, 39 U.S.C. § 3009, in the marketing of nondurable office and cleaning supplies, including powdered drain, sewer, and lift station cleaners, other chemical cleaners, and herbicides to consumers, such as small businesses, hotels, municipalities, and charitable organizations, throughout the United States and Canada. 3. Defendants neither admit nor deny any of the allegations in the Complaint, except as specifically stated in this Order. Only for purposes of this action, Defendants admit the facts necessary to establish jurisdiction. Page 2 of 14
Case: 1:17-cv-07790 Document #: 340 Filed: 04/10/19 Page 3 of 14 PageID #:3665 'I 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 this Order. DEFINITIONS For the purpose of this Order, the following definitions apply: 1. "Corporate Defendants" means Al Janitorial Supply Corp., also doing business as A One Janitorial; Century Manufacturing Corp., also doing business as A-1 Janitorial Supply; Commercial Maintenance Chemical Corp., also doing business as CMC; and Global Direct Resources, Inc., also doing business as A-1 Janitorial, Century Manufacturing, Commercial Maintenance Chemical, and Target Supplies, and their successors and assigns. 2. "Defendants" means all of the Individual Defendants and the Corporate Defendants, individually, collectively, or in any combination. 3. "Individual Defendants" means Eric Sternberg and Matthew Sternberg, also known as Mathew Sternberg, and by whatever other names each may be known. 4. "Person(s)" includes a natural person, organization, or other legal entity, including a corporation, limited liability company, partnership, sole proprietorship, association, cooperative, or any other group or combination acting as an entity. 5. "Plaintiff' means the Federal Trade Commission. 6. "Receiver" means the Receiver appointed pursuant to Section IX of the Stipulated Preliminary Injunction entered in this matter on November 21, 2017 (Dkt. 45). Page 3 of 14 'I
Case: 1:17-cv-07790 Document #: 340 Filed: 04/10/19 Page 4 of 14 PageID #:3666 'I "Telemarketing" means any plan, program, or campaign which is conducted to induce the purchase of goods or services or a charitable contribution by use of one or more telephones, and which involves more than one interstate telephone call. 8. "Unordered Merchandise" means merchandise mailed or otherwise sent without the prior expressed request or consent of the recipient. ORDER I. PROHIBITED BUSINESS ACTIVITIES IT IS FURTHER ORDERED that Defendants, Defendants' officers, agents, and employees, 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 advertising, marketing, promoting, offering for sale, sale, or provision of any good or service, are permanently restrained and enjoined from: A. Misrepresenting, or assisting others in misrepresenting, expressly or by implication: 1. That Defendants would send consumers a sample of their goods at no cost to the consumer; 2. That Consumers ordered and agreed to pay for the goods that were shipped to them by Defendants; or 3. Any other fact material to consumers concerning any good or service, such as: the total costs; any material restrictions, limitations, or conditions; or any material aspect of its performance, efficacy, nature or central characteristics; B. In connection with the Telemarketing of nondurable office and cleaning supplies: Page 4 of 14 ·1
Case: 1:17-cv-07790 Document #: 340 Filed: 04/10/19 Page 5 of 14 PageID #:3667 . Misrepresenting, or assisting others in misrepresenting, directly or by implication, the total costs to purchase, receive, or use the goods, including by stating that Defendants would send a free sample of the goods; 2. Making a false or misleading statement to induce any person to pay for goods or services or to induce a charitable contribution; or 3. In telephone calls initiated by a telemarketer to induce the purchase of goods or services or to solicit a charitable contribution, failing to disclose truthfully, promptly, and in a clear and conspicuous manner to the Person receiving the call that the purpose of the call is to sell goods or services; C. Shipping Unordered Merchandise, except for free samples clearly and 'I conspicuously marked as such; and D. Sending, mailing, or otherwise transmitting bills, invoices, or dunning communications, or otherwise communicating with consumers, to request payment for Unordered Merchandise or free samples. II. MONETARY JUDGMENT IT IS FURTHER ORDERED that: A. Judgment in the amount of Two Million, Seven Hundred Thousand Dollars ( 2,700,000) is entered in favor of the Commission against Defendants, jointly and severally, as equitable monetary relief. B. Defendants are ordered to pay to the Commission Two Million, Seven Hundred Thousand Dollars ( 2,700,000), of which at least Two Million, Four Hundred Thousand Dollars ( 2,400,000), as Defendants stipulate, has been deposited into the Court registry for no purpose other than payment to the Commission. The full payment of Two Million, Seven Hundred Page 5 of 14
Case: 1:17-cv-07790 Document #: 340 Filed: 04/10/19 Page 6 of 14 PageID #:3668 Dollars ( 2,700,000) must be made within 7 days of entry of this Order by electronic 'I fund transfer in accordance with instructions previously provided by a representative of the Commission. C. Defendants relinquish dominion and all legal and equitable right, title, and interest in all assets transferred pursuant to this Order and may not seek the return of any assets. D. The facts alleged in the Complaint will be taken as true, without further proof, in any subsequent civil litigation by or on behalf of the Commission, including in a proceeding to enforce its rights to any payment or monetary judgment pursuant to this Order, such as a nondischargeability complaint in any bankruptcy case. E. The facts alleged in the Complaint establish all elements necessary to sustain an action by the Commission pursuant to Section 523(a)(2)(A) of the Bankruptcy Code, 11 U.S.C. § 523(a)(2)(A), and this Order will have collateral estoppel effect for such purposes. F. 'I Defendants acknowledge that their Taxpayer Identification Numbers (Social Security Numbers or Employer Identification Numbers), which Defendants previously submitted to the Commission, may be used for collecting and reporting on any delinquent amount arising out of this Order, in accordance with 31 U.S.C. § 770 I. G. All money paid to the Commission pursuant to this Order may be deposited into a fund administered by the Commission or its designee to be used for equitable relief, including consumer redress and any attendant expenses for the administration of any redress fund. If a representative of the Commission decides that direct redress to consumers is wholly or partially impracticable or money remains after redress is completed, the Commission may apply any remaining money for such other equitable relief (including consumer information remedies) as it determines to be reasonably related to Defendants' practices alleged in the Complaint. Any Page 6 of 14 'I
Case: 1:17-cv-07790 Document #: 340 Filed: 04/10/19 Page 7 of 14 PageID #:3669 not used for such equitable relief is to be deposited to the U.S. Treasury as disgorgement. 'l Defendants have no right to challenge any actions the Commission or its representatives may take pursuant to this Subsection. III. DISSOLUTION OF ASSET FREEZE IT IS FURTHER ORDERED that the freeze on Defendants' assets, pursuant to the Stipulated Preliminary Injunction entered in this matter on November 21, 2017 (Dkt. 45), is modified to permit the payments identified in Section II above. Upon completion of those payments, the asset freeze is dissolved. A financial institution shall be entitled to rely upon a letter from the Commission stating that the freeze on Defendants' assets has been lifted. IV. PROIDBITION ON COLLECTING ON ACCOUNTS IT IS FURTHER ORDERED that Defendants, Defendants' officers, agents, and 'I employees, 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, are permanently restrained and enjoined from collecting or attempting to collect payment from consumers for any goods marketed or sold by Corporate Defendants prior to November 2, 2017, and from selling, assigning, or otherwise transferring any right to collect payment from consumers for any goods marketed or sold by Corporate Defendants prior to November 2, 2017. V. CUSTOMER INFORMATION IT IS FURTHER ORDERED that Defendants, Defendants' officers, agents, and employees, and all other Persons in active concert or participation with any of them, who receive actual notice of this Order, are permanently restrained and enjoined from directly or indirectly failing to provide sufficient customer information to enable the Commission to efficiently administer consumer redress. If a representative of the Commission requests in writing any Page 7 of 14 'I
Case: 1:17-cv-07790 Document #: 340 Filed: 04/10/19 Page 8 of 14 PageID #:3670 related to redress, Defendants must provide it, in the form prescribed by the 'I Commission, within 14 days. VI. COMPLETION OF RECEIVERSHIP IT IS FURTHER ORDERED that the Receiver must complete all duties within 60 days after entry of this Order, but any party or the Receiver may request that the Court extend the Receiver's term for good cause. VII. ORDER ACKNOWLEDGMENTS IT IS FURTHER ORDERED that Defendants obtain acknowledgments of receipt of this Order: A. Each Defendant, within 7 days of entry of this Order, must submit to the Commission an acknowledgment of receipt of this Order sworn under penalty of perjury. B. For 5 years after entry of this Order, each Individual Defendant for any business 'I that such Defendant, individually or collectively with any other Defendants, is the majority owner or controls directly or indirectly, and each Corporate Defendant, must deliver a copy 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 the Order and all agents and representatives who participate in conduct related to the subject matter of the Order; 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 . 'I Page 8 of 14
Case: 1:17-cv-07790 Document #: 340 Filed: 04/10/19 Page 9 of 14 PageID #:3671 From each individual or entity to which a Defendant delivered a copy of this 'I Order, that Defendant must obtain, within 30 days, a signed and dated acknowledgment of receipt of this Order. VIII. COMPLIANCE REPORTING IT IS FURTHER ORDERED that Defendants make timely submissions to the Commission: A. One year after entry of this Order, each Defendant must submit a compliance report, sworn under penalty of perjury: 1. Each Defendant must: (a) identify the primary physical, postal, and email address and telephone number, as designated points of contact, which representatives of the Commission may use to communicate with Defendant; (b) identify all of that Defendant's 'i 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 Individual Defendant must describe if they know or should know due to their own involvement); (d) describe in detail whether 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, unless previously submitted to the Commission. 2. Additionally, each Individual 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 such Defendant performs ·1 services whether as an employee or otherwise and any entity in which such Defendant has any ownership interest; and (c) describe in detail such Defendant's involvement in each such Page 9 of 14
Case: 1:17-cv-07790 Document #: 340 Filed: 04/10/19 Page 10 of 14 PageID #:3672 'I including title, role, responsibilities, participation, authority, control, and any ownership. B. For 10 years after entry of this Order, each Defendant must submit a compliance notice, sworn under penalty of perjury, within 14 days of any change in the following: 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 ownership interest in or controls directly or indirectly that may affect compliance obligations arising under this 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. 'I 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 business activity, including any business for which such Defendant performs services whether as an employee or otherwise and any entity in which such Defendant has any ownership interest, and identify 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 any bankruptcy petition, insolvency proceeding, or similar proceeding by or against such Defendant within 14 days of its filing. D. Any submission to the Commission 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 'I 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. Page 10 of 14
Case: 1:17-cv-07790 Document #: 340 Filed: 04/10/19 Page 11 of 14 PageID #:3673 'I Unless otherwise directed by a Commission representative in writing, all submissions to the Commission pursuant to this Order must be emailed to DEbrief@ftc.gov 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 NW, Washington, DC 20580. The subject line must begin: FTC v. Al Janitorial Supply Corp., et, al., FTC Matter No. XI80003. IX. RECORDKEEPING IT IS FURTHER ORDERED that Defendants must create certain records for IO years 'i after entry of the Order, and retain each such record for 5 years. Specifically, Corporate Defendants and each Individual Defendant for any business that such Defendant, individually or collectively with any other Defendants, 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; B. Personnel records showing, for each Person providing services, whether as an employee 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 or indirectly, such as through a third party, and any response; D. All records necessary to demonstrate full compliance with each provision of this Order, including all submissions to the Commission; and E. A copy of each unique advertisement or other marketing material. Page II ofl4
Case: 1:17-cv-07790 Document #: 340 Filed: 04/10/19 Page 12 of 14 PageID #:3674 COMPLIANCE MONITORING IT IS FURTHER ORDERED that, for the purpose of monitoring Defendants' compliance with this Order, including 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 the Commission, each Defendant must: submit additional compliance reports or other requested information, which must be sworn under penalty of perjury; appear for depositions; and produce 'I documents 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 Civil Procedure 29, 30 (including telephonic depositions), 31, 33, 34, 36, 45, and 69. B. For matters concerning this Order, the Commission is authorized to communicate directly with each Defendant. Defendants must permit representatives of the Commission to interview any employee or other Person affiliated with any Defendant who has agreed to such an interview. The Person interviewed may have counsel present. C. The Commission may use all other lawful means, including posing, though its representatives as consumers, suppliers, or other individuals or entities, to Defendants or any individual or entity affiliated with Defendants, without the necessity of identification or prior 'I notice. 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 consumer reporting agency must furnish consumer reports concerning Individual Defendants, pursuant to Section 604(1) of the Fair Credit Reporting Act, 15 U.S.C. § 168lb(a)(l). Page 12 of14 'I
Case: 1:17-cv-07790 Document #: 340 Filed: 04/10/19 Page 13 of 14 PageID #:3675 RETENTION OF JURISDICTION IT IS FURTHER ORDERED that this Court retains jurisdiction ofthis matter for purposes of construction, modification. and enforcement of this Order. SOORDEREDthis l O/b dayof { .2019 Sh 1-Jefn.JohtL ee 'I '-i3nited States District Judge SO STIPULATED AND AGREED: John C. H e Date: d Pl GuyG. War Federal Trade Commission 230 South Dearborn Street, Suite 3030 Chicago, IHinois 60604 (312) 960-5634 [telephone] (312) 960-5600 [facsimile] iha1lerud@ftc.gov gward@ftc.gov Attorneys for Plaintiff FOR DEFENDANTS: . / Steven M. Wernikoff 7 Date: Amanda Wolfman Honigman Miller Schwartz Md Cohn LLP 155 North Wacker Drive, Suite 3100 Chicago, Illinois 60606 (312) 701-9380 [telephone] (312) 701-9335 [facsimile] swernik:off@honigman.com awol:fman@honigman.com Attorneys for Defendants Page 13 ofl4 0 ! / J 2oI1
Case: 1:17-cv-07790 Document #: 340 Filed: 04/10/19 Page 14 of 14 PageID #:3676 g,. individually and as . 1c f Al .Janitorial Supp)yCorp., Cen . ·anufactu.ring. Corp.,.-Comniercial Maintenance Chemical Corp., and Global . . . . ------ ) Date: · Defendant Matthew Stemberg. individually and 8 an officer of Century Manufacturing Corp. and Commercial Maintenance ChegiicaJ Corp. ,2-\.t ?{ (. 'I 'I P ge 14. of 14 'I
as A One Janitorial; Century Manufacturing Corp., also doing business as A-1 Janitorial Supply; Commercial Maintenance Chemical Corp., also doing business as CMC; and Global Direct Resources, Inc., also doing business as A-1 Janitorial, Century Manufacturing, Commercial Maintenance Chemical, Target Supplies, and their successors and assigns.
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