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Case 1:17-cv-00067-NT Document 3-1 Filed 02/22/17 Page 1 of 35 PageID #: 117 

IN THE UNITED STATES DISTRICT COURT
 

FOR THE DISTRICT OF MAINE
 

) 

FEDERAL TRADE COMMISSION and ) 

STATE OF MAINE, ) 

) Case No. 1:17-cv-00067-NT

Plaintiffs, ) 

) 

v. ) STIPULATED FINAL JUDGMENT 

) AND ORDER FOR PERMANENT 

) INJUNCTION AND OTHER 

XXL IMPRESSIONS LLC, a limited liability ) EQUITABLE RELIEF AS TO 

company, also d/b/a BETTER HEALTH ) DEFENDANTS J2 RESPONSE L.L.P. 

NUTRITIONALS, ) d/b/a J2 RESPONSE, JUSTIN 

) BUMANN, and JUSTIN STEINLE 

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. )
 

_______________________________________ )
 
 

 

 

 

 

Case 1:17-cv-00067-NT Document 3-1 Filed 02/22/17 Page 2 of 35 PageID #: 118 

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), pursuant to Section 4(a) of the Telemarketing and Consumer Fraud and Abuse 

Prevention Act (“Telemarketing Act”), 15 U.S.C. § 6103(a), 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 Defendants’ acts or 

practices in violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.C. §§ 45(a) and 52, the 

Telemarketing and Consumer Fraud and Abuse Prevention Act (“Telemarketing Act”), 15 

U.S.C. §§ 6101-6108, the FTC’s Trade Regulation Rule entitled “Telemarketing Sales Rule” 

(“TSR”), 16 C.F.R. Part 310, the Electronic Fund Transfer Act (“EFTA”), 15 U.S.C. §§ 1693­

1693r, and its implementing Regulation E, 12 C.F.R. § 1005.10, and Section 207 of the Maine 

UTPA, ME. REV. STAT. tit. 5, § 207, in connection with the labeling, advertising, marketing, 

distribution, and sale of products purported to provide relief from joint and back pain and to 

prevent or mitigate cognitive decline. 

The Commission, the State of Maine, and Defendants stipulate to the entry of this Final 

Judgment and Order for Permanent Injunction and Other Equitable Relief as to Defendants J2 

Response L.L.P., also d/b/a J2 Response, Justin Bumann, and Justin Steinle (hereafter 

collectively, “Defendants”). 

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FINDINGS
 

1. This Court has jurisdiction over this matter. 

2. The Complaint charges that Defendants 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, the 

Telemarketing and Consumer Fraud and Abuse Prevention Act (“Telemarketing Act”), 15 

U.S.C. §§ 6101-6108, the FTC’s Trade Regulation Rule entitled “Telemarketing Sales Rule” 

(“TSR”), 16 C.F.R. Part 310, the Electronic Fund Transfer Act (“EFTA”), 15 U.S.C. §§ 1693­

1693r, and its implementing Regulation E, 12 C.F.R. § 1005.10, and Section 207 of the Maine 

UTPA, ME. REV. STAT. tit. 5, § 207, in connection with the labeling, advertising, marketing, 

distribution, and sale of products purported to provide pain relief and to prevent or mitigate 

cognitive decline. 

3. Defendants neither admit nor deny any of the allegations in the Complaint, except 

as specifically stated in this Order. Defendants admit the facts necessary to establish jurisdiction 

only for purposes of this action. 

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 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: 

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1. “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 

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; 

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F.	 The disclosure must comply with these requirements in each medium 

through which it is received, including all electronic devices and face-toface communications; 

G.	 The disclosure must not be contradicted or mitigated by, or inconsistent 

with, anything else in the communication; and 

H.	 When the representation or sales practice targets a specific audience, such 

as children, the elderly, or the terminally ill, “ordinary consumers” 

includes reasonable members of that group. 

2. “Close proximity” means that the disclosure is very near the triggering 

representation. For example, a disclosure made through a hyperlink, pop-up, interstitial, or other 

similar technique is not in close proximity to the triggering representation. 

3. “Corporate Defendant” means J2 Response LLP, also d/b/a J2 Response and its 

successors and assigns. 

4. “Covered Product” means any Dietary Supplement, Food, or Drug, including but 

not limited to FlexiPrin and CogniPrin. 

5. “Defendants” means Individual Defendants and Corporate Defendant, 

individually, collectively, or in any combination. 

6.	 “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 

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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 

represented to be used as a conventional food or as a sole item of a meal 

or the diet. 

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

Pharmacopoeia, official Homeopathic 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; (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. 

8. “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. 

9. “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. 

10. “Including” means including but not limited to. 

11. “Individual Defendants” means Justin Bumann and Justin Steinle. 

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12. “Material connection” means any relationship that materially affects the weight 

or credibility of any Endorsement and that would not reasonably be expected by consumers. 

13. “Negative Option Feature” means, in an offer or agreement to sell or provide 

any good, program, or service, a provision under which the consumer’s silence or failure to make 

an affirmative action to reject goods or services, or to cancel the agreement, is interpreted by the 

seller or provider as acceptance of the offer. 

14. “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. 

15. “Preauthorized Electronic Fund Transfer” as defined by the Electronic Fund 

Transfer Act, 15 U.S.C. § 1693a(10), means an electronic fund transfer authorized in advance to 

recur at substantially regular intervals. 

I.
 

PROHIBITED REPRESENTATIONS: PAIN RELIEF, CARTILAGE REBUILDING, 

COGNITIVE DECLINE, MEMORY IMPROVEMENT, AND DISEASE CLAIMS
 

IT IS HEREBY 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 

manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of any 

Covered Product, are hereby 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. Reduces joint pain, inflammation, or stiffness, including in as little as two hours; 

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B. Provides relief from back pain; 

C. Reduces the need for medication; 

D. Helps rebuild damaged joints or cartilage; 

E. Reverses, mitigates, or prevents cognitive or mental decline; 

F. Improves memory; 

G. Restores lost memory capacity; or 

H. 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 shall be: (1) randomized, double-blind, and placebocontrolled; and (2) conducted by researchers qualified by training and experience to conduct 

such testing. In addition, all underlying or supporting data and documents generally accepted by 

experts in the field as relevant to an assessment of such testing as described in the Section 

entitled Preservation of Records Relating to Competent and Reliable Human Clinical Tests or 

Studies must be available for inspection and production to Plaintiffs. Persons covered by this 

Section shall have the burden of proving that a product satisfies the definition of Essentially 

Equivalent Product. 

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II.
 

PROHIBITED REPRESENTATIONS: OTHER HEALTH-RELATED CLAIMS
 

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 

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 about the health benefits, safety, performance, or 

efficacy of any Covered Product, other than a representation covered under the Section of this 

Order entitled Prohibited Representations: Pain Relief, Cartilage Rebuilding, Cognitive Decline, 

Memory Improvement, and Disease Claims, 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 

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 

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Case 1:17-cv-00067-NT Document 3-1 Filed 02/22/17 Page 10 of 35 PageID #: 126 

such human clinical testing to substantiate that the representation is true. In addition, when such 

tests or studies are human clinical tests or studies, all underlying or supporting data and 

documents generally accepted by experts in the field as relevant to an assessment of such testing 

as set forth in the Section entitled Preservation of Records Relating to Competent and Reliable 

Human Clinical Tests or Studies must be available for inspection and production to Plaintiffs. 

Persons covered by this Section have the burden of proving that a product satisfied the definition 

of Essentially Equivalent Product. 

III.
 

PROHIBITED REPRESENTATIONS REGARDING TESTS, STUDIES,
 

OR INGREDIENTS
 

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 

manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of any 

Covered Product are hereby permanently restrained and enjoined from misrepresenting, in any 

manner, expressly or by implication, including through the use of any product name, 

endorsement, depiction, or illustration: 

A.	 That any Covered Product is clinically proven to rebuild joint cartilage, reduce 

back or joint pain, reduce stiffness, or reduce inflammation; 

B.	 That any Covered Product is clinically proven to restore or improve memory, or 

mitigate cognitive decline; 

C.	 That the performance or benefits of any Covered Product are scientifically 

proven; or 

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D.	 The existence, contents, validity, results, conclusions, or interpretations of any 

test, study, or research. 

IV.
 

FDA-APPROVED CLAIMS
 

IT IS FURTHER ORDERED that nothing in this Order prohibits Defendants, 

Defendants’ officers, agents, and employees, or all other persons in active concert or 

participation with any of them from: 

A. For any drug, making a 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 any 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.
 

PRESERVATION OF RECORDS RELATING TO COMPETENT AND RELIABLE 

HUMAN CLINICAL TESTS OR STUDIES
 

IT IS FURTHER ORDERED that, with regard to any human clinical test or study 

(“test”) upon which Defendants rely to substantiate any claim covered by this Order, Defendants 

shall secure and preserve all underlying or supporting data and documents generally accepted by 

experts in the field as relevant to an assessment of the test, including: 

A.	 All protocols and protocol amendments, reports, articles, write-ups, or other 

accounts of the results of the test, and drafts of such documents reviewed by the 

test sponsor or any other person not employed by the research entity; 

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B.	 All documents referring or relating to recruitment; randomization; instructions, 

including oral instructions, to participants; and participant compliance; 

C.	 Documents sufficient to identify all test participants, including any participants 

who did not complete the test, and all communications with any participants 

relating to the test; all raw data collected from participants enrolled in the test, 

including any participants who did not complete the test; source documents for 

such data; any data dictionaries; and any case report forms; 

D.	 All documents referring or relating to any statistical analysis of any test data, 

including, but not limited to, any pretest analysis, intent-to-treat analysis, or 

between-group analysis performed on any test data; and 

E.	 All documents referring or relating to the sponsorship of the test, including all 

communications and contracts between any sponsor and the test’s researchers. 

Provided, however, the preceding preservation requirement shall not apply to a reliably 

reported test, unless the test was conducted, controlled, or sponsored, in whole or in part by: 

(1) any Defendant; (2) any Defendant’s officers, agents, representatives, or employees; (3) any 

other person or entity in active concert or participation with any Defendant; (4) any person or 

entity affiliated with or acting on behalf of any Defendant; (5) any supplier of any ingredient 

contained in the product at issue to any of the foregoing or to the product’s manufacturer; or 

(6) the supplier or manufacturer of such product. 

For purposes of this Section, “reliably reported test” means a report of the test has been 

published in a peer-reviewed journal, and such published report provides sufficient information 

about the test for experts in the relevant field to assess the reliability of the results. 

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For any test conducted, controlled, or sponsored, in whole or in part, by Defendants, 

Defendants must establish and maintain reasonable procedures to protect the confidentiality, 

security, and integrity of any personal information collected from or about participants. These 

procedures shall be documented in writing and shall contain administrative, technical, and 

physical safeguards appropriate to Corporate Defendants’ size and complexity, the nature and 

scope of Defendants’ activities, and the sensitivity of the personal information collected from or 

about the participants. 

VI.
 

PROHIBITED REPRESENTATIONS
 

RELATED TO ENDORSEMENTS
 

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 

manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of any 

good or service, are permanently restrained and enjoined from misrepresenting, in any manner, 

expressly or by implication, including through the use of any good or service name, 

endorsement, depiction, or illustration, that: 

A.	 Any person is an expert with respect to the Endorsement message provided by 

that person; 

B.	 Purported consumers who appear in advertising obtained a reported result through 

use of those goods or services; 

C.	 Experts are providing their objective, independent opinions regarding the efficacy 

of any good or service; and 

D.	 Any advertising is objective news or informational programming. 

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VII.
 

PROHIBITED REPRESENTATIONS
 

RELATED TO ADVERTISING FORMAT
 

IT IS FURTHER ORDERED that Defendants and their officers, agents, and 

employees, and all other persons in active concert or participation with any of them, who receive 

actual notice of this Order by personal service or otherwise, whether acting directly or indirectly, 

in connection with the advertising, marketing, promotion, offering for sale, sale, or distribution 

of any good or service, are hereby permanently restrained and enjoined from misrepresenting 

that paid commercial advertising is independent programming, including independent, 

educational programming, or an objective news report. 

They are further permanently restrained and enjoined from presenting any radio 

advertisement fifteen (15) minutes in length or longer or intended to fill a time slot of fifteen (15) 

minutes in length or longer that does not state in the same language as the predominant language 

used in the advertisement, in a Clear and Conspicuous manner within the first thirty (30) seconds 

of the commercial and immediately before each presentation of ordering instructions for the 

good or service, the following disclosure: 

“THE PROGRAM YOU ARE LISTENING TO IS A PAID 

ADVERTISEMENT FOR [THE PRODUCT, PROGRAM, OR SERVICE].” 

For the purpose of this provision, the presentation of a telephone number, mailing address, or 

website through which listeners may obtain more information or place an order for the 

product, program, or service shall be deemed a presentation of ordering instructions so as to 

require the stating of the disclosure provided herein. 

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VIII.
 

DISCLOSURE OF MATERIAL CONNECTIONS
 

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 

manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of any 

good or service, are permanently restrained and enjoined from making any representation, 

expressly or by implication, including through the use of a good or service name, endorsement, 

depiction, or illustration, about any endorser of a good or service unless they disclose, Clearly 

and Conspicuously, and in Close Proximity to the representation, a Material Connection, when 

one exists, between such endorser and Defendants or any other individual or entity 

manufacturing, labeling, advertising, promoting, offering for sale, selling, or distributing such 

good or service. 

IX.
 

OTHER PROHIBITED MISREPRESENTATIONS
 

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, promotion, offering for sale, sale, or distribution of any good or service, 

are permanently restrained and enjoined from misrepresenting, or assisting others in 

misrepresenting, expressly or by implication, any material fact, including, but not limited to: 

A.	 That consumers are receiving a money-back guarantee, a free trial offer, a riskfree trial offer, a free gift, or a bonus; 

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B.	 The total cost to purchase, receive, or use the good or service, including shipping, 

handling, processing, and any additional financial obligations that may be 

incurred as a result of accepting the free product, service, or offer; 

C.	 The timing or manner of any charge or bill; 

D.	 Any material restrictions, limitations, or conditions to purchase, receive, or use 

the good or service; and 

E.	 Any material aspect of the performance, efficacy, nature, or central characteristics 

of the good or service. 

X.
 

REQUIRED DISCLOSURES
 

IT IS FURTHER ORDERED that, in connection with the advertising, marketing, 

promotion, offering for sale, sale, or distribution of any good or service, Defendants and their 

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, are 

permanently restrained and enjoined from: 

A.	 Failing to Clearly and Conspicuously disclose, or assisting others in failing to 

Clearly and Conspicuously disclose, before consumers are asked to reveal billing 

information or to consent to any purchase in connection with any claim that a 

good or service is “free,” has a minimal cost, or is being offered on a trial basis or 

at an introductory or limited-time reduced cost, the following material terms and 

conditions of any offer: 

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1.	 In close proximity to such claim, the total cost to purchase, receive, or use 

any good or service that is the subject of the sales offer, including 

shipping, handling, and processing; 

2.	 The amount, timing, and manner of payment of all fees, charges, or other 

amounts that a consumer will be charged or billed, and any additional 

financial obligations that may be incurred as a result of accepting the free 

product, service, or offer; and 

3.	 The terms and conditions of any refund, cancellation, exchange, or 

purchase policy or policies, including the specific steps and means by 

which such requests must be submitted, and the telephone number, email 

address, web address, or street address to which such requests must be 

directed, including the deadline (by date or frequency) by which the 

consumer must act, and, if there is a policy of not making refunds, 

cancellations, exchanges, or repurchases, a statement regarding this 

policy; and 

B.	 Failing to Clearly and Conspicuously disclose, or assisting others in failing to 

Clearly and Conspicuously disclose, before consumers are asked to reveal billing 

information or consent to any purchase that includes a Negative Option Feature: 

1.	 That the consumer will be charged for the good or service, or that the 

charges will increase after the trial period ends, and if applicable, that the 

charges will be on a recurring basis, unless the consumer timely takes 

steps to prevent or stop such charges; 

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2.	 The amount (or range of costs) the consumer will be charged or billed, 

including shipping, handling, and processing, and, if applicable, the 

frequency of such charges unless the consumer timely takes steps to 

prevent or stop them; 

3.	 The deadline (by date or frequency) by which the consumer must act in 

order to stop the recurring charges; 

4.	 The name of the seller or provider of the good or service; 

5.	 A description of the good or service; and 

6.	 The mechanism to stop any recurring charges. 

In addition, for any transaction involving a sale of a good or service to a consumer 

through a Negative Option Feature, within ten (10) days after the date of the sale, Defendants 

must send the consumer written confirmation of the transaction, either by email or first class 

mail, according to the consumer’s preference, which is identified as a written confirmation in the 

email subject line or on the outside of the envelope. Such written confirmation shall include 

Clear and Conspicuous disclosure of all the information required by this Subsection X.B(1)-(6) 

above, and shall specify the procedures by which consumers can cancel or obtain a refund. 

XI.
 

EXPRESS INFORMED CONSENT
 

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, promotion, offering for sale, sale, or distribution of any good or service, 

are permanently restrained and enjoined from using billing information to obtain payment from a 

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Case 1:17-cv-00067-NT Document 3-1 Filed 02/22/17 Page 19 of 35 PageID #: 135 

consumer, unless, prior to using such billing information to obtain payment, Defendants obtain 

the express informed consent of the consumer. 

A.	 For all written offers with a Negative Option Feature (including over the Internet 

or other web-based applications or services), a consumer’s express informed 

consent shall be obtained, prior to Defendants’ obtaining any billing information 

from consumers, through a check box, signature, or other substantially similar 

method, that consumers must affirmatively select or sign to accept the Negative 

Option Feature. Immediately adjacent to such check box, signature, or 

substantially similar method, Defendants shall disclose all costs associated with 

the Negative Option Feature, including shipping, handling, and processing, that 

the consumer is agreeing to pay such costs, the length of any trial period, and the 

date by which consumers must cancel to avoid being charged. This disclosure 

shall contain no additional information and shall be Clear and Conspicuous in 

relation to any other information provided on the page relating to costs, risks, or 

obligations associated with any Negative Option Feature, including any terms 

referring to “free,” “trial,” and “processing fee.” 

B.	 For all oral offers including a Negative Option Feature, Defendants shall, in 

addition to disclosing the information identified in the Section of this Order 

entitled Required Disclosures and prior to obtaining any billing information from 

a consumer, obtain affirmative and unambiguous oral confirmation that the 

consumer: 

1.	 Consents to authorizing payment for any goods or services, including 

shipping, handling, and processing; 

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2.	 Understands that the transaction includes a Negative Option Feature; and 

3.	 Understands the specific affirmative steps the consumer must take to 

prevent further charges. 

Defendants shall maintain for three (3) years from the date of each transaction an unedited voice 

recording of the entire transaction, including the prescribed statements set out in the Section of 

this Order entitled Required Disclosures. Each recording must be retrievable by date and by the 

consumer’s name, telephone number, or billing information and must be provided upon request 

and without charge to the consumer, the consumer’s bank, or any law enforcement entity. 

XII.
 

PROHIBITIONS CONCERNING REFUNDS AND CANCELLATIONS
 

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, promotion, offering for sale, sale, or distribution of any good or service, 

are permanently restrained and enjoined from: 

A.	 Misrepresenting, expressly or by implication, any material term of any refund, 

return, or cancellation policy or practice; 

B.	 Failing to honor a refund, return, or cancellation request that complies with any 

policy to make refunds or allow returns or cancellations; and 

C.	 Failing to provide a simple mechanism for a consumer to immediately stop any 

recurring charge for such good or service, at least one of which is as simple and 

easy to use as the mechanism the consumer used to initiate the charges. 

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1.	 For consumers who entered into the agreement to purchase a good or 

service including a Negative Option Feature over the Internet or through 

other web-based applications or services, Defendants must provide a 

mechanism for consumers to stop the recurring charge over the Internet or 

through such other web-based application or service. 

2.	 For consumers who entered into the agreement to purchase a good or 

service including a Negative Option Feature through an oral offer and 

acceptance, Defendants must maintain a telephone number through which 

the consumer can easily cancel the good or service, seek a refund for past 

charges, and immediately stop all further charges. Defendants must 

answer all calls to this telephone number during normal business hours. 

XIII.
 

PROHIBITION ON VIOLATING THE RESTORE ONLINE SHOPPERS’
 

CONFIDENCE ACT
 

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, promotion, offering for sale, sale, or distribution of any good or service, 

are permanently restrained and enjoined from violating the Restore Online Shoppers’ Confidence 

Act, 15 U.S.C. §§ 8401-8405, a copy of which is attached hereto as EXHIBIT A. 

XIV.
 

COMPLIANCE WITH THE ELECTRONIC FUND TRANSFER ACT
 

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 

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actual notice of this Order, whether acting directly or indirectly, in connection with the 

advertising, marketing, promotion, offering for sale, sale, or distribution of any good or service, 

are permanently restrained and enjoined, in connection with any person who purchases any good 

or service subsequent to the date of this Order, and who uses a debit card or other means of 

electronic fund transfer, from: 

A.	 Failing to obtain written authorization for Preauthorized Electronic Fund 

Transfers from a consumer’s accountbefore initiating any Preauthorized 

Electronic Fund Transfer, as required by Section 907(a) of the Electronic Fund 

Transfer Act, 15 U.S.C. § 1693e(a), and Section 1005.10(b) of Regulation E, 12 

C.F.R. § 1005.10(b), as more fully set out in Section 1005.10 of the Consumer 

Financial Protection Bureau’s Official Staff Commentary to Regulation E, 12 

C.F.R. § 1005, Supp. I; and 

B.	 Failing to maintain procedures reasonably adapted to avoid an unintentional 

failure to obtain written authorization for a Preauthorized Electronic Fund 

Transfer, as required in Section 1005.10 of the Consumer Financial Protection 

Bureau’s Official Staff Commentary to Regulation E, 12 C.F.R. § 1005, Supp. I. 

XV. 

MONETARY JUDGMENT AND PARTIAL SUSPENSION
 

IT IS FURTHER ORDERED that:
 

A.	 Judgment is hereby entered in favor of Plaintiffs and against Defendants, jointly 

and severally, in the amount of $6,574,957, as equitable monetary relief; 

B.	 Defendants are ordered to pay to the Commission $425,000, which, as Defendants 

stipulate, their undersigned counsel holds in escrow for no purpose other than 

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payment to the Commission. Such payment must be made within 7 days of entry 

of this Order by electronic funds transfer in accordance with instructions 

previously provided by a representative of the Commission. 

C.	 Upon satisfaction of the obligations described in Subsection B, above, the 

remainder of the judgment as to the Defendants shall be suspended subject to 

Subsections E and F below; 

D.	 In the event of default on any obligation to make payments under this Order, 

including, but not limited to, failure to pay $425,000 to the FTC pursuant to 

Section B, above, interest shall accrue as computed pursuant to 28 U.S.C. § 

1961(a) from the date of default to the date of payments. In the event such default 

continues for ten (10) calendar days beyond the date any payments are due, the 

entire judgment amount of $6,574,957 shall immediately become due and 

payable. Defendants shall be jointly and severally liable with all remaining 

defendants named in the Complaint filed in this action for all payments required 

by this Subsection and any interest on such payments; 

E.	 Plaintiffs’ agreement to the suspension of part of the judgment is expressly 

premised upon the truthfulness, accuracy, and completeness of Defendants’ sworn 

financial statements, and related documents (collectively, “financial 

representations”) submitted to Plaintiffs, namely, the following: 

1.	 Individual and corporate financial disclosures, together with all 

attachments, submitted to Plaintiffs on July 6, 2016; 

2.	 Emails from counsel dated July 27, 2016 and August 3, 2016 clarifying 

financial questions; 

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3.	 Corporate and individual bank statements submitted to Plaintiffs on 

August 5, 2016; 

4.	 Email from counsel dated September 22, 2016 with attachments 

explaining all receivables. 

F.	 The suspension of the judgment will be lifted as to any Defendant if, upon motion 

by either of Plaintiffs, the Court finds that such Defendant failed to disclose any 

material asset or income, materially misstated the value of any asset, or made any 

other material misstatement or omission in the financial representations identified 

in Subsection E, above; 

G.	 If the suspension of the judgment is lifted, this judgment becomes immediately 

due as to the Defendant or Defendants causing the suspension to be lifted in the 

amount specified in Subsection A, above (which the parties stipulate only for 

purposes of this Section represents the consumer injury alleged in the Complaint), 

less any payment previously made pursuant to this Section, plus interest computed 

from the date of entry of this Order; 

H.	 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, or for other equitable relief such as consumer 

informational remedies. If a representative of the Commission decides that such 

equitable remedies are wholly or partially impracticable, the remaining money 

shall be divided with the State of Maine. Any money not used by the FTC for 

equitable relief or transferred to the State of Maine is to be deposited to the U.S. 

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Treasury as disgorgement. Defendants have no right to challenge any actions the 

Commission or its representatives may take pursuant to this Subsection; 

I. All money paid to the State of Maine pursuant to this Order shall be 

deposited into the Attorney General’s other special revenue account and used for 

consumer education, consumer protection, antitrust enforcement, or for any lawful 

purpose at the sole discretion of the Attorney General; 

J.	 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; 

K.	 The facts alleged in the Complaint will be taken as true, without further proof, in 

any subsequent civil litigation by or on behalf of either of Plaintiffs, including in a 

proceeding to enforce their rights to any payment or monetary judgment pursuant 

to this Order, such as a nondischargeability complaint in any bankruptcy 

case. 

L.	 The facts alleged in the Complaint establish all elements necessary to sustain an 

action by either of Plaintiffs 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; and 

M.	 Defendants acknowledge that their Taxpayer Identification Numbers (Social 

Security Numbers or Employer Identification Numbers), which Defendants must 

submit to Plaintiffs, may be used for collecting and reporting on any delinquent 

amount arising out of this Order, in accordance with 31 U.S.C. § 7701. 

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XVI.
 

COOPERATION WITH FTC AND MAINE
 

IT IS FURTHER ORDERED that Defendants 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. Defendants must provide truthful and complete information, evidence, and 

testimony. Individual Defendants must appear and Corporate Defendant must cause its partners, 

officers, employees, representatives, or agents to appear for interviews, discovery, hearings, 

trials, and any other proceedings that a representative of the Commission or the Maine AG may 

reasonably request upon five (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. 

XVII.
 

CUSTOMER INFORMATION
 

IT IS FURTHER ORDERED that 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: 

A.	 Failing to provide sufficient customer information in their possession, custody, or 

control to Plaintiffs to enable the Commission to efficiently administer consumer 

redress. If a representative of the Commission requests in writing any 

information related to redress, Defendants must provide it, in the form prescribed 

by the Commission, within fourteen (14) days. 

B.	 Disclosing, using, or benefitting from customer information, including the name, 

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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, or other financial account), that any 

Defendant obtained prior to entry of this Order in connection with the 

labeling, advertising, marketing, distribution, or sale of any formulation of 

FlexiPrin or CogniPrin; and 

C.	 Failing to destroy such customer information in all forms in their possession, 

custody, or control within thirty (30) days after receipt of written direction to do 

so from representatives of both the Commission and the Maine Attorney 

General’s Office. 

Provided, however, that customer information need not be destroyed, and may be 

disclosed, to the extent requested by a government agency or required by law, regulation, or 

court order. 

XVIII.
 

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 and the State of Maine an acknowledgment of receipt of this 

Order sworn under penalty of perjury. 

B.	 For 10 years after entry of this Order, Individual Defendants for 

any business involved in the sale or marketing of any Covered Product that 

such Defendants, individually or collectively with Corporate Defendant, is the 

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Case 1:17-cv-00067-NT Document 3-1 Filed 02/22/17 Page 28 of 35 PageID #: 144 

majority owner or controls directly or indirectly, and Corporate Defendant, must 

deliver a copy of this Order to: 

1.	 All principals, officers, directors, LLP and LLC partners, managers, and 

members; 

2.	 All employees, agents, and representatives who participate in the 

manufacturing, 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. 

C.	 From each individual or entity to which a Defendant delivered a copy of this 

Order, that Defendant must obtain, within 30 days, a signed and dated 

acknowledgment of receipt of this Order. 

XIX.
 

COMPLIANCE REPORTING
 

IT IS FURTHER ORDERED that Defendants make timely submissions to the 

Commission and to the Maine AG: 

A.	 60 days 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 

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Case 1:17-cv-00067-NT Document 3-1 Filed 02/22/17 Page 29 of 35 PageID #: 145 

Plaintiffs’ representatives may use to communicate with Defendant; 

(b) identify all of that 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 Defendants (which Individual Defendants 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 Plaintiffs. 

2.	 Additionally, Individual Defendants 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 Defendants perform services whether as employees or 

otherwise and any entity in which such Defendants have any ownership 

interest; and (c) describe in detail such Defendants’ involvement in each 

such business, 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 

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Case 1:17-cv-00067-NT Document 3-1 Filed 02/22/17 Page 30 of 35 PageID #: 146 

contact; (b) the structure of Corporate Defendant or any entity that 

Defendants have any ownership interest in or control 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. 

2. Additionally, Individual Defendants 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 

such Defendants perform services whether as employees or otherwise 

and any entity in which such Defendants have 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, each 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 such Defendants 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. 

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E.	 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, N.W., Washington, D.C. 20580. 

The subject line must begin: FTC v. XXL Impressions 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 et al., and must identify the Court and docket number of 

this Order as ordered by the Court. 

XX.
 

RECORDKEEPING
 

IT IS FURTHER ORDERED that in connection with the sale of any Covered Product, 

Defendants must create certain records for 10 years after entry of the Order, and retain each such 

record for 5 years. Specifically, Corporate Defendant and Individual Defendants for any 

business that such Defendants, 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, all 

costs incurred in generating those revenues, and the resulting net profit or loss; 

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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 

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

E.	 A copy of each unique advertisement or other marketing material. 

XXI.
 

COMPLIANCE MONITORING
 

IT IS FURTHER ORDERED that, for the purpose of monitoring Defendants’ 

compliance with this Order, including the financial representations upon which part of the 

judgment was suspended, 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 

the Commission or the Maine AG, each 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 each Defendant. Defendants must permit Plaintiffs’ 

representatives to interview any employee or other person affiliated with any 

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Case 1:17-cv-00067-NT Document 3-1 Filed 02/22/17 Page 33 of 35 PageID #: 149 

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 

Defendants or any individual or entity affiliated with Defendants, 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 

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. Defendants hereby consent 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 

Defendants 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 

individual Defendants, pursuant to Section 604(1) of the Fair Credit Reporting 

Act, 15 U.S.C. §1681b(a)(1). 

33
 
 

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XXII. 

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 ___ day of February, 2017. 

United States District Court Judge 

IT IS SO STIPULATED this ___ day of February, 2017. 15

DAVID C. SHONKA 

Acting General Counsel 

/s/James A. Prunty 

James A. Prunty 

David P. Frankel 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Room CC-10562 

Washington, D.C. 20580 

Telephone: 202-326-2438, 2812 

Facsimile: 202-326-3259 

Email: jprunty@ftc.gov 

 dfrankel@ftc.gov 

Attorneys for Plaintiff 

FEDERAL TRADE COMMISSION 

IT IS SO STIPULATED this ___ day of February, 2017. 15

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: 207-626-8842 

Facsimile: 207-624-7730 

Email: brendan.oneil@maine.gov 

34 
 

i~ 

IT IS SO STIPULATED this ) ~ day of February, 2017. 

;ti... IT IS SO STIPULATED this .Q_ day of February, 2017. 

IT IS SO STIPULATED this\"!,~ day of February, 2017. 

35 

On 

By~~ b~fOfD{fendant J2 Response, L.L.P 

ATTORNEY FOR DEFENDANTS 12 

RESPONSE, L.L.P., JUSTIN BUMANN, 

and JUSTIN STEINLE 

Isl Marc Roth 

Marc Roth, Esq. 

Manatt, Phelps & Phillips, LLP 

Pro Hae Vice forthcoming 

7 Times Square 

New York, NY 10036 

Telephone: (212) 790-4542 

Email: mroth@manatt.com 

John D. Clifford, IV 

Clifford & Golden, P.A. 

5 Maple Street, P.O. Box 368 

Lisbon Falls, ME 04552 

Telephone: (207) 353-9366 

Case 1:17-cv-00067-NT Document 3-1 Filed 02/22/17 Page 35 of 35 PageID #: 151