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Federal Trade Commission v. American Evoice, Ltd.

United States District Court, D. Montana, Missoula Division

June 28, 2017

FEDERAL TRADE COMMISSION, Plaintiff,
v.
AMERICAN EVOICE, LTD., EMERICA MEDIA CORPORATION, FONERIGHT, INC., GLOBAL VOICE MAIL, LTD., HEARYOU2, INC, NETWORK ASSURANCE, INC, SECURATDAT, INC, TECHMAX SOLUTIONS, INC, VOICE MAIL PROFESSIONALS, INC, STEVE
v.
SANN, TERRY D. LANE, a/k/a TERRY D. SANN, NATHAN M. SANN, ROBERT M. BRAACH, Defendants. And BIBLIOLOGIC, LTD, Relief Defendant.

          FOR PLAINTIFF FEDERAL TRADE COMMISSION: RICHARD McKEWEN, WSBA #45041 Federal Trade Commission Counsel for Plaintiff Federal Trade Commission

          FOR DEFENDANT STEVEN V. SANN: STEVEN V. SANN, individually

          ORDER

          DANA L. CHRISTENSEN, CHIEF ISTRICT JUDGE UNITED STATES DISTRICT COURT

         WHEREAS on January 8, 2013, Plaintiff Federal Trade Commission ("FTC" or "Commission") filed its Complaint (Doc. 1) for a permanent injunction and other equitable relief in this matter pursuant to Section 13(b) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 53(b), against Defendants American eVoice, Ltd.; Emerica Media Corp.; FoneRight, Inc.; Global Voice Mail, Ltd.; HearYou2, Inc.; Network Assurance, Inc.; SecuratDat, Inc.; Techmax Solutions, Inc.; Voice Mail Professionals, Inc.; Steven V. Sann; Terry D. Sarin (a/k/a Terry D. Sann); Nathan M. Sann; and Robert M. Braach ("Defendants"); and Relief Defendant Bibliologic, Ltd; and

         WHEREAS Plaintiff FTC alleges in its Complaint that the Defendants engaged in deceptive and unfair acts or practices in violation of Section 5 of the FTC Act, 15 U.S.C. § 45, by placing over $70 million in unauthorized charges on consumers' telephone bills; and

         WHEREAS Plaintiff FTC, in its Complaint, requests that Court award Plaintiff, among other things, equitable monetary relief such as restitution, the refund of monies paid, and the disgorgement of ill-gotten assets; and

         WHEREAS Defendant Steven V. Sann filed a petition for relief under Chapter 11 of the Bankruptcy Code on September 29, 2014, In re Steven Vincent Sann, No. 14-61370 (Bankr. D. Mont.) ("Bankruptcy Case"); and

         WHEREAS on April 29, 2015, the Bankruptcy Court entered an order converting the case to a Chapter 7, and Christy L. Brandon was appointed Chapter 7 Trustee of the bankruptcy estate; and WHEREAS on March 22, 2017, Defendant Sann filed in his Bankruptcy Case a waiver of discharge (attached hereto as Exhibit A); and

         WHEREAS the Bankruptcy Court approved the waiver of discharge in a written order (attached hereto as Exhibit B); and WHEREAS the Chapter 7 Trustee has entered into a settlement agreement ("Bankruptcy Settlement Agreement") with Defendant Steven V. Sarin and the Montana Department of Revenue ("MT DOR"), that would, among other things, resolve matters of dispute between and among Defendant Steven V. Sann, the MT DOR, and the Chapter 7 Trustee; and

         WHEREAS the Bankruptcy Settlement Agreement contains substantially the same asset turnover relief against Defendant Sann set forth in Section IV.B of this Stipulated Order for Permanent Injunction and Monetary Judgment ("Order"); and WHEREAS the Bankruptcy Settlement Agreement is subject to Bankruptcy Court approval; and WHEREAS the Bankruptcy Settlement Agreement is contingent upon the District Court's approval and entry of this Order; and

         WHEREAS the monetary judgment imposed by Section IV of this Order represents a debt that arose prior to Defendant Sarin's Bankruptcy Case; and

         WHEREAS Plaintiff FTC and Defendant Steven V. Sann ("Sann") stipulate to the entry of this Order to resolve all matters in dispute in this action between them;

         THEREFORE, IT IS ORDERED as follows:

         FINDINGS

1. This Court has jurisdiction over this matter.
2. The FTC's Complaint charges that Defendants engaged in deceptive and unfair acts or practices in violation of Section 5 of the FTC Act, 15 U.S.C. § 45, by placing unauthorized charges on consumers' telephone bills ("cramming").
3. Defendant Sann neither admits nor denies any of the allegations in the Complaint, except as specifically stated in this Order. Only for purposes of this action, Defendant Sann admits the facts necessary to establish jurisdiction.
4. Defendant Sann 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 Sann waives all rights to appeal or otherwise challenge or contest the validity of this Order.

         DEFINITIONS

         For purposes of this Order, the following definitions shall apply:

         1. "Bankruptcy Case" means the Chapter 7 Bankruptcy of Defendant Sann, In re Steven Vincent Sann, No. 14-61370 (Bankr. D. Mont.);

         2. "Clearly and Conspicuously" means that a required disclosure is difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers, including in all of the following ways:

a. In any communication that is solely visual or solely audible, the disclosure must be made through the same means through which the communication is presented. In any communication 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 the communication even if the representation requiring the disclosure is made in only one means.
b. 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 so that it is easily noticed, read, and understood.
c. An audible disclosure, including by telephone or streaming video, must be delivered in a volume, speed, and cadence sufficient for ordinary consumers to easily hear and understand it.
d. In any communication using an interactive electronic medium, such as the Internet or software, the disclosure must be unavoidable.
e. The disclosure must use diction and syntax understandable to ordinary consumers and must appear in each language in which the representation that requires the disclosure appears.
f. The disclosure must comply with these requirements in each medium through which it is received, including all electronic devices and face-to-face communications.
g. The disclosure must not be contradicted or mitigated by, or inconsistent with, anything else in the communication.
h. When the representation or sales practice targets a specific audience, such as children, the elderly, or the terminally ill, "ordinary consumers" includes ...

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