FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FEDERAL TRADE COMMISSION, 

Plaintiff-Appellee,

No. 09-55093 v.

D.C. No. NEOVI, INC., DBA Neovi Data

3:06-cv-01952-JLS- Corporation, DBA Qchex.com; G7

JMA PRODUCTIVITY SYSTEMS, INC., DBA

Qchex.com; JAMES M. DANFORTH,  ORDER

individually, and as an officer of AMENDING

Neovi, Inc. and G7 Productivity OPINION AND

Systems, Inc.; THOMAS VILLWOCK AMENDED

individually, and as an officer of OPINION

Neovi, Inc.,

Defendants-Appellants. 

Appeal from the United States District Court

for the Southern District of California

Janis L. Sammartino, District Judge, Presiding

Argued and Submitted

March 4, 2010—San Diego, California

Filed May 14, 2010

Amended June 15, 2010

Before: Michael Daly Hawkins, Sidney R. Thomas, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown

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COUNSEL

Michael L. Mallow (argued), Los Angeles, California, for the

appellants.

Lawrence DeMille-Wagman (argued), Washington, DC, for

the appellee.

ORDER

The court’s opinion, filed May 14, 2010, is amended as follows:

At page 6989 of the slip opinion, replace <We examine here

the reach of § 5 of the Act, which empowers the FTC to pre8740 FTC v. NEOVI, INC.

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vent the use of “unfair methods of competition in or affecting

commerce . . . .” 15 U.S.C. § 45(a)(1).> with <We examine

here the reach of § 5 of the Act, which empowers the FTC to

prevent the use of “unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or

affecting commerce . . . .” 15 U.S.C. § 45(a)(1).>.

OPINION

McKEOWN, Circuit Judge:

The Federal Trade Commission (“FTC”) has broad powers

under the FTC Act to prevent businesses from engaging in

unfair or deceptive practices. 15 U.S.C. §§ 41-58. This case

arises from a website—managed by Neovi Data Corporation

(DBA Qchex.com), G7 Productivity Systems (DBA

Qchex.com), James Danforth, and Thomas Villwock (together

“Qchex”)—that created and delivered unverified checks at the

direction of registered users. During its six-year run, fraudsters and con artists extensively abused the website.

We examine here the reach of § 5 of the Act, which

empowers the FTC to prevent the use of “unfair methods of

competition in or affecting commerce, and unfair or deceptive

acts or practices in or affecting commerce . . . .” 15 U.S.C.

§ 45(a)(1). The key issue on appeal is whether Qchex is liable

for causing substantial injury to consumers that is not reasonably avoidable or outweighed by countervailing benefits. 15

U.S.C. § 45(n). The district court granted summary judgment

in favor of the FTC, finding that Qchex’s profound lack of

diligence, coupled with the affirmative acts of creating and

delivering hundreds of thousands of unverified checks—over

150,000 of which were from accounts later frozen for fraud—

warranted liability under the Act. Qchex was ordered to disgorge $535,358 in revenue and permanently enjoined from

operating any similar business without taking appropriate,

specified measures to protect consumers. We affirm.

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BACKGROUND

I. QCHEX.COM

From 2000 to 2006, Qchex marketed a series of software

programs on a website called “Qchex.com.” The software

allowed registered users to create and send checks by post or

email. In October 2006, the website was shut down. The governing corporation, Neovi,1

 filed for Chapter 11 bankruptcy a

year later in October 2007.2

To register for a Qchex account, users were prompted to

enter a name and email address, and then to create a password. The account could be activated simply by clicking on

a link that Qchex sent to the email address provided. Setup

was completed after Qchex received pertinent information

about the user’s bank account, such as the routing and account

numbers. Registered users could submit a request on the website that a check drawn from their account be created and

delivered to a third party. To achieve this end, users needed

only to enter the name of a payee, the check amount, and the

payee’s email or mailing address, depending on the preferred

method of delivery. Qchex.com then converted the information into a negotiable instrument that, when printed, conformed to U.S. banking regulations. The instrument was

designed to be negotiable without the user’s signature, but

users could choose to upload their signatures if they so

desired. 

1

James Danforth was the Vice President, Chief Operating Officer, Treasurer, Secretary, and registered service agent of Neovi. Thomas Villwock

was the owner, Chief Executive Officer, and President of Neovi. 

2After Qchex was shut down, but before filing for bankruptcy, Neovi

offered a similar check creation and delivery service called “Gochex.”

After filing for bankruptcy, Villwock and Danforth established iProlog

Corporation and launched a third check delivery service called “FreeQuickwire.com.” iProlog hired all Neovi employees and conducted the

same business activities. 

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If the user chose to send the check electronically, the payee

would receive email instructions to sign up for an account on

Qchex.com. Once registered, the payee could print the check,

and a confirmation email would be sent to the “payor.”

3

 If the

user chose to send the check by post, it would be printed at

a “print service center” operated in the main by employees of

G7 Productivity Systems, a California corporation that produced the check software, ink, and paper that was marketed

by Neovi on the Qchex website.4 G7 employees mailed the

checks to the payees. 

II. FRAUD

The Qchex system was highly vulnerable to con artists and

fraudsters. Because the information necessary to set up an

account was relatively public and easy to come by, it was a

simple matter for unscrupulous opportunists to obtain identity

information and draw checks from accounts that were not

their own. Indeed, over a six-year period, Qchex froze over

13,750 accounts for fraud. Those accounts spawned nearly

155,000 checks, supplied over 37,350 bank account numbers,

and were the source of checks totaling more than

$402,750,000—an amount more than half of the total drawn

during that time. 

As one would expect, Qchex received hundreds of letters

and thousands of telephone calls from consumers, banks, and

law enforcement agencies complaining about funds drawn

from accounts without authorization. Victims included not

only individuals and businesses, but also large institutions and

agencies like the University of Chicago, Goldman Sachs, the

3Electronically delivered checks could only be printed using special ink

and paper; these items were advertised and offered to the payee in the

notification email. 

4Danforth is G7’s Executive Vice President, Chief Financial Officer,

Secretary, and registered service agent. Villwock is a business consultant

at G7 but considered by its employees to be the de facto President. 

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Federal Communications Commission, and, ironically, the

FTC itself. 

Qchex contends that it was attuned to the risk of fraud from

the outset and acted responsibly to curtail it. Before 2005,

Qchex argues that it took multiple fraud reduction measures,

pointing specifically to the “Qchex Monitor” system that

enabled employees to spot irregular activity like the presence

of large volumes of high-denomination checks. Internet Protocol addresses associated with fraudulent transactions were

blacklisted and Qchex placed warnings on the checks alerting

the payees that it could not verify whether the check was duly

authorized by the payors. On a case-by-case basis, Qchex

froze suspicious accounts. Finally, Qchex encrypted the check

data it transmitted over the Internet and used barcoding to

obscure account data on the face of the checks it issued.

None of these measures proved successful. The Qchex

Monitor was underutilized and does not appear to have been

employed in any focused way to target or unearth fraud. The

rest of the measures were either reactive—taking place after

fraud had already occurred—or unresponsive to the chief concern that checks were being drawn against unauthorized

accounts. 

In 2005, after meeting with the American Banking Association and the Federal Deposit Insurance Corporation, Qchex

implemented a “micro-deposit” program called the “Qchex

Validation System” (“QVS”). To verify that a user’s account

was legitimate, Qchex made a single, nominal deposit of

somewhere between three and twenty cents in the account the

user provided. The user was required to check the account to

determine the deposit’s value. Qchex declined to deliver

checks from a provided account unless the user was first able

to accurately report the value of the micro-deposit. After three

failed attempts, the Qchex account would be frozen.

Although it was a step in the right direction, QVS had a

number of loopholes that rendered it ineffective. For example,

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it only applied to accounts that were newly activated. Users

who had balances established before the new security system

was adopted were still able to send checks by mail. Even for

new users the system was easy to game. Because QVS validated just one bank account per registered user, as long as a

user had legitimate access to one bank account, other accounts

—possibly unauthorized—could be used without verification

through QVS. Significantly, the new system did not apply to

emailed checks at all. Whatever its failings, the QVS system

was short lived. For reasons that are unclear, the payment processor that enabled Qchex to run the system terminated its

contract in April 2006.

ANALYSIS

I. UNFAIR PRACTICES UNDER § 5 OF THE FTC ACT

[1] Under § 5 of the FTC Act, an unfair practice or act is

one that “causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers

themselves and not outweighed by countervailing benefits to

consumers or to competition.” 15 U.S.C. § 45(n). 

A. Causation

The district court found that Qchex is liable for the

“[u]nfair creation and delivery of unverified checks.” Qchex

urges that this charge is both “legally” and “literally” impossible. It claims that only users can create checks because “without user input nothing, and certainly not a check, . . . could

be created or delivered.” This semantic argument is meant to

encompass not only the causation requirement, but also

Qchex’s claim that it was not given adequate notice of the

charges. 

[2] Qchex’s challenge to causation is best captured in its

statement that it did not “obtain, input or direct” the delivery

of consumer information nor facilitate the theft. This spin

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ignores the fact that Qchex created and controlled a system

that facilitated fraud and that the company was on notice as

to the high fraud rate. Qchex’s approach would immunize a

website operator that turned a blind eye to fraudulent business

made possible only through the operator’s software. Even if

the creation of the checks was impossible without user input,

that does not mean Qchex did not create the checks that it

later delivered. 

By Qchex’s logic, a publishing house cannot be said to

create and distribute books, because it is impossible to print

books without content provided by an author. Indeed, the creation and distribution of most any good is subject to a host of

sequential steps. Some of those steps involve the contribution

of independent causal agents, but those contributions do not

magically erase the role of the aggregator and distributor of

the goods. This reality becomes obvious if we flip the counterfactual. Without the Qchex software and the G7 workforce,

users would not be able to create and deliver checks. Therefore, by Qchex’s lights, users cannot be said to create and

deliver checks either. This circular logic leads to the absurd

result that although checks have been created and delivered,

no one is doing the creating or the delivering. 

[3] At most, Qchex’s argument shows that Qchex and the

users each contributed to the creation and delivery of the

checks. But, even granting this characterization, Qchex is not

discharged from liability under the FTC Act—a single violation of the Act may have more than one perpetrator. See, e.g.,

FTC v. Bay Area Bus. Council, Inc., 423 F.3d 627, 630 (7th

Cir. 2005) (holding multiple defendants liable under § 5 of

FTC Act).

[4] To support its argument that the FTC’s showing of causation was insufficient, Qchex urges us to seek interpretive

guidance from several California state cases that were decided

under California Business & Professions Code § 17200—the

so-called “Little FTC Act.” We decline the invitation. While

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it is common practice for states with consumer protection statutes modeled on the FTC Act to rely on federal authority

when interpreting those statutes, the reverse is not the case.

As the FTC points out, given the abundance of state laws on

which such interpretations could be based, this practice would

likely result in a sea of inconsistent rulings. See Orkin Exterminating Co., Inc. v. FTC, 849 F.2d 1354, 1363 (11th Cir.

1988) (noting that there is nothing constraining the FTC “to

follow judicial interpretations of state statutes in construing

the agency’s section 5 authority”). 

Qchex also criticizes the district court’s reliance on two

unpublished district court cases. Although not precedential,

these cases are instructive insofar as they illustrate the role of

a facilitator under the FTC Act. 

In FTC v. Windward Marketing, Ltd., the court found multiple defendants liable for a magazine telemarketing scheme

in which defendants obtained victims’ banking information

over the phone and illegitimately debited their accounts for

magazine subscriptions they did not realize they were purchasing. Defendant Wholesale Capital Corporation

(“Wholesale”) maintained several bank accounts used to collect on victims’ invoices. See No. Civ.A. 1:96-CV-615F, 1997

WL 33642380, at *11-*12 (N.D. Ga. Sept. 30, 1997). The

court noted that 40% of the drafts were returned unauthorized

and that, at the very least, Wholesale was “on notice of a high

probability of fraud and/or unfairness . . . .” Id. at *13. 

Although Wholesale did not itself make any misrepresentations or initiate the fraudulent scheme, the court found Wholesale liable under the FTC Act because it “facilitated and

provided substantial assistance to [a] . . . deceptive scheme,”

resulting in substantial injury to consumers. Id. at *12-*13.

This conduct was enough to find Wholesale primarily liable—

as opposed to liable as an accomplice—under the Act. Id.

Similarly, in FTC v. Accusearch, Inc., Accusearch was held

liable for maintaining a website that sold the GPS locations of

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individual cell phones and other confidential, personal information, even though it did not itself illegally obtain the information. No. 06-CV-105-D, 2007 WL 4356786, at *6 (D.

Wyo. Sept. 28, 2007) (noting that “[e]ach time the Defendants

placed an order for phone records, they caused others to use

false pretenses and other fraudulent means to obtain confidential consumer phone records”). 

[5] These cases illustrate that businesses can cause direct

consumer harm as contemplated by the FTC Act in a variety

of ways. In assessing that harm, we look of course to the

deceptive nature of the practice, but the absence of deceit is

not dispositive. Nor is actual knowledge of the harm a

requirement under the Act. Courts have long held that consumers are injured for purposes of the Act not solely through

the machinations of those with ill intentions, but also through

the actions of those whose practices facilitate, or contribute

to, ill intentioned schemes if the injury was a predictable consequence of those actions. See FTC v. Winsted Hosiery Co.,

258 U.S. 483, 494 (1922) (holding that “[t]he honest manufacturer’s business may suffer, not merely through a competitor’s deceiving his direct customer, the retailer, but also

through the competitor’s putting into the hands of the retailer

an unlawful instrument . . .”); FTC v. R.F. Keppel & Bro.,

Inc., 291 U.S. 304, 314 (1934) (holding candy retailer liable

for unfair practices although manufacturer was responsible for

the element of chance that made the practices unfair); Regina

Corp. v. FTC, 322 F.2d 765, 768 (3d Cir. 1963) (explaining

that “[w]ith respect to those instances where petitioner did not

contribute to the [misleading act], it is settled that [o]ne who

places in the hands of another a means of consummating a

fraud or competing unfairly in violation of the Federal Trade

Commission Act is himself guilty of a violation of the Act”)

(quotation marks and citations omitted).

Qchex had reason to believe that a vast number of checks

were being drawn on unauthorized accounts—checks that it

legitimized in the eyes of consumers. Aside from the prodi8748 FTC v. NEOVI, INC.

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gious number of complaints Qchex received, its president testified that Qchex expected the site would be used for

fraudulent purposes from the beginning. Qchex nonetheless

continued to create and deliver checks without proper verification. By doing so it engaged in a practice that facilitated and

provided substantial assistance to a multitude of deceptive

schemes. 

[6] To be clear, none of this is to say that Qchex is liable

under a theory of aiding and abetting. Qchex engaged in

behavior that was, itself, injurious to consumers. Qchex’s

business practices might have served to assist others in illicit

or deceptive schemes, but the liability under the FTC Act that

attaches to Qchex is not mediated by the actions of those third

parties. Qchex caused harm through its own deeds—in this

case creating and delivering unverified checks—and thus § 5

of the FTC Act easily extends to its conduct.5

[7] Finally, as to its notice argument, Qchex contends that

the FTC’s complaint must be read as alleging that Qchex

“originated” checks in the sense that it, not the users, directed

the unauthorized withdrawal of funds out of consumer

accounts. This allegation does not square with a plain reading

of the complaint. As the district court points out, Qchex created the checks in the sense that it physically brought them

into being—or provided the means to do so—and made them

appear legitimate and credible in the eyes of consumers. 

5Although we grant Qchex’s motion to take judicial notice of various

congressional documents that support in some measure Qchex’s claim that

aiding and abetting liability is not cognizable under the FTC Act, the documents have little bearing on the outcome of this appeal. Qchex’s actions

caused consumer harm; it did not merely aid or abet others who caused

consumer harm. We take no position on aiding and abetting liability under

the Act. 

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B. Substantial Injury

[8] The FTC met its burden of establishing substantial

injury; there is no triable issue of fact with respect to this

issue. The district court based its findings on record facts that

it pulled from various sources, including Qchex’s database,

Qchex’s declarations, and consumer complaints. Qchex’s

claim that the district court based its findings on “speculation,

not evidence,” is without support. 

The district court acknowledged that the number of fraudulent items created could not be definitively quantified, but it

also said that more than half the total value of all the checks

drawn with the help of Qchex came from accounts later frozen for fraud. That concrete and quantifiable finding is sufficient to show substantial harm because it establishes that

consumers “were injured by a practice for which they did not

bargain.” See Windward Marketing, 1997 WL at *11 (citing

Orkin Exterminating Co., 849 F.2d at 1364-65). An act or

practice can cause “substantial injury” by doing a “small harm

to a large number of people, or if it raises a significant risk

of concrete harm.” Am. Fin. Servs. Ass’n v. FTC, 767 F.2d

957, 972 (D.C. Cir. 1985) (quotation marks and citations

omitted) cert. denied, 475 U.S. 1011 (1986).

Finally, in an effort to skirt liability, Qchex observes that

because the victims of fraud already had their banking information compromised, they would have had to spend time protecting their accounts whether or not the Qchex system was

instrumental in their loss. If Qchex caused or helped to cause

substantial injury to consumers, it is no defense to say that

consumers nonetheless would have been harmed by someone

else. In any case, it is not clear that the fraudsters would have

had the means to take advantage of the victims’ information

without the aid of the Qchex software. Indeed, some of the

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frauds stemming from the Qchex system involved victims

whose account information was not compromised.6

C. Reasonable Avoidability

[9] In determining whether consumers’ injuries were reasonably avoidable, courts look to whether the consumers had

a free and informed choice. See Am. Fin. Servs. Ass’n, 767

F.2d at 976. Qchex argues that there are triable issues of fact

as to whether consumers could reasonably have avoided their

alleged injuries. Although the district court addressed consumers’ ability to avoid injury before it occurred, Qchex

argues that the court did not address the consumers’ ability to

mitigate damage after it occurred. See Orkin Exterminating

Co., 849 F.2d at 1365 (discussing both anticipatory and subsequent mitigation). Qchex maintains that even if consumers

were substantially injured, they were able to take “reasonable

steps to avoid loss” by communicating with their banks after

the unauthorized payments were discovered. 

[10] The district court sufficiently addressed both avenues

of mitigation. In denying Qchex’s reconsideration motion, the

court wrote:

It is likely that some consumers never noticed the

unauthorized withdrawals. Even if the consumer did

notice, obtaining reimbursement required a substan6Consider the following example found in the record: A confidence man

made contact with a woman over the Internet and gained her trust. He represented himself as a wealthy individual and told the woman that he had

asked an acquaintance who owed him money to make a check out directly

to her as a gift. The woman subsequently received a (Qchex) check in the

mail from an unrecognized name in the amount of $4,000. She protested

to the con man that the gift was too generous and he suggested that she

therefore keep $1,000 and wire the other $3,000 to a friend traveling in

Nigeria who had lost his luggage. She did so. The check, of course, was

illegitimate and the woman was on the hook for the $3,000 sent to Nigeria

and the bank fees incurred for an overdrawn account. 

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tial investment of time, trouble, aggravation, and

money. Further, Defendants’ uncooperativeness only

increased this outlay. Neither could consumers mitigate the period of time during which they lost access

to and use of the funds taken using Defendants’

fraudulent checks. Regardless of whether a bank

eventually restored consumers’ money, the consumer

suffered unavoidable injuries that could not be fully

mitigated. 

Qchex has not shown that there is a material issue of fact as

to whether consumer injuries were reasonably avoidable on

either end of the fraudulent transactions.

D. No Substantial Consumer Benefit

[11] The FTC also met its burden of showing that consumer injury was not outweighed by countervailing benefits

to consumers or to competition. The FTC offered the declaration of a law professor who has written extensively about

electronic commerce, credit cards, and payment systems in

support of its claim. The FTC’s expert explained that the

Qchex website is of limited use to an ordinary consumer

because “all large banks,” offer the same services at a cheaper

price and with greater security. He also noted the presence of

other third parties in the marketplace—like PayPal—that provide similar services. Even though Qchex’s email service was

relatively unique, it was considerably less convenient given

that many commercial payees do not accept emailed checks.

There is also a disincentive to use the email method because

it is more costly to the recipient who must buy special ink,

paper, and a suitable printer to accept emailed checks. 

The district court found that Qchex failed to counter the

FTC expert’s testimony. Qchex put forward a short declaration from one of its executives purporting to do so, but the

district court found that the declaration was “the epitome of

uncorroborated and self-serving testimony,” and declined to

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rely on it to find a genuine issue of fact. As a result, Qchex

accuses the district court of improperly weighing evidence

and making findings of fact. 

Specific testimony by a single declarant can create a triable

issue of fact, but the district court was correct that it need not

find a genuine issue of fact if, in its determination, the particular declaration was “uncorroborated and self-serving.” See

Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th

Cir. 2002). The district court was on sound footing concluding that Qchex put forward nothing more than a few bald,

uncorroborated, and conclusory assertions rather than evidence. 

II. EQUITABLE RELIEF7

[12] Analogizing to securities law, the district court concluded that the appropriate measure of equitable disgorgement

was Neovi’s total revenue. See SEC v. JT Wallenbrock &

Assocs., 440 F.3d 1109, 1113 (9th Cir. 2006) (explaining that

“the district court has broad equity powers to order the disgorgement of ‘ill-gotten gains’ obtained through the violation of

federal securities laws”) (internal citations omitted).8 An evidentiary hearing was unnecessary because there were no

“genuine issues of material fact remaining in the case.” Qchex

argues that this conclusion was error in that “the FTC did not

7We decline to consider Qchex’s argument, based on FTC v. Verity

Int’l, Ltd., 443 F.3d 48, 67 (2d Cir. 2006), that the district court lacked

jurisdiction or authority to award damages or disgorgement under § 13(b)

of the FTC Act. Qchex did not properly raise this issue in the district

court, and thus the argument is waived on appeal. See In re E.R. Fegert,

Inc., 887 F.2d 955, 957 (9th Cir. 1989) (explaining that appellate courts

will not consider an argument unless it has been “raised sufficiently for the

trial court to rule on it”). 

8

In Wallenbrock we stressed that in making this calculation, the court

has ‘broad discretion,’ and needs only a ‘reasonable approximation of

profits causally connected to the violation . . . . [D]isgorgement should

include all gains flowing from the illegal activities.” 440 F.3d at 1113-14.

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put forth admissible evidence demonstrating that Neovi realized $535,358 in ‘ill gotten gains.’ ” The district court derived

this specific figure from the gross receipts on Neovi’s tax

return, the details of which were not disputed.9 Qchex argues

that the figure is invalid because Qchex’s revenues were

exceeded by developing, maintenance, and operating costs for

the software and website. 

Qchex’s argument is puzzling. The court explicitly declined

to reduce the disgorgement by the cost of developing and

maintaining the Qchex system because those activities “facilitated and contributed to the check fraud,” and because Qchex

did “not offer evidence showing exact costs or expenses

which the Court could reasonably use in its calculations.” It

is unclear what facts could be uncovered at an evidentiary

hearing that Qchex did not have the opportunity to present to

the district court. In any case, as the FTC points out, the disputed points appear to be questions of law, not of fact. 

III. THE INJUNCTION

[13] Under the injunction order, Qchex is prohibited from

“creating or delivering any check for a customer, unless [it]

perform[s] the verification procedures identified” in the rest

of the order. Qchex characterizes the order as a mandatory

injunction, claiming that § 13(b) of the FTC Act does not

expressly authorize mandatory injunctions.10

9The district court found that the tax returns were properly authenticated

based on an executive’s declaration submitted in a supplemental brief.

Before the district court, Qchex did not contest the authenticity of the tax

returns or the veracity of the declaration. Instead, Qchex argued that the

manner of authentication (as an exhibit to a supplemental reply brief) was

improper. The district court did not abuse its discretion on this evidentiary

point and resolution of this issue would not be aided by an evidentiary

hearing. To the extent Qchex now challenges the authenticity of the tax

returns, that issue is not properly before us on appeal. See In re E.R.

Fegert, Inc., 887 F.2d at 957. 

10We need not address the availability of mandatory injunctions under

§ 13(b) of the FTC Act. 

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[14] According to the most general understanding of the

distinction between mandatory and prohibitive injunctions,

the district court’s order is prohibitory, not mandatory. See

Black’s Law Dictionary 855 (9th ed. 2009) (defining “prohibitory injunction” as an injunction that “forbids or restrains an

act,” and “mandatory injunction” as an injunction that “orders

an affirmative act or mandates a specified course of conduct”). The prohibition contains an exception, but this language does not convert it from a prohibitory to a mandatory

injunction; Qchex is not ordered to undertake any affirmative

action. 

AFFIRMED.

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