UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Federal Trade Commission

v. Civil No. 04-cv-377-JD

Seismic Entertainment

Productions, Inc., et al.

O R D E R

The Federal Trade Commission (“FTC”) brought this action

against individuals and companies that are alleged to have

engaged in unfair acts or practices in violation of Section 5(a)

of the FTC Act, 15 U.S.C. § 45(a), arising from their marketing

of software products to consumers. Several of the defendants

have defaulted. Defendant John Robert Martinson, who is

proceeding pro se, moved for an entry of judgment against himself

and his companies, Mailwiper, Inc., and Spy Deleter, Inc., which

proposed judgment he represented had been sent to the FTC. No

proposed order of judgment was included with Martinson’s motion.

The FTC filed a proposed order of judgment against

Martinson, Mailwiper, and Spy Deleter, which would impose a

permanent injunction against certain activities associated with

their Internet use, require certain monitoring and record-keeping

conditions, and order disgorgement of $1,162,498.00. Martinson

filed a response in which he represented that Mailwiper and Spy

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Deleter were dissolved as of February 17, 2005. He also did not

appear to contest his liability for the actions alleged by the

FTC but argued that he is not a threat to the Internet and that

he does not plan to engage in any activities that would violate

the FTC Act. Martinson objected to the amount of disgorgement

sought by the FTC on the grounds that the companies did not earn

that amount and that customer redress procedures provided

opportunities for his customers to receive refunds. 

The FTC responded that the financial information Martinson

has provided is insufficient to determine whether a lower amount

of disgorgement would be appropriate. The FTC proposes that the

court enter an order for a permanent injunction against

Martinson, Mailwiper, and Spy Deleter, and reopen discovery for

six weeks on the issue of the financial benefits Martinson and

his companies gained through the activities challenged in the

FTC’s complaint.

Based on the filings of the FTC and Martinson, it appears

the parties can reach agreement on the issue of liability and

injunctive relief addressing that liability. It also appears

that it would be beneficial for the parties to further explore

the financial aspects of the businesses to better determine what

amount, if any, would be appropriate as an amount of

disgorgement.

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Conclusion

For the foregoing reasons, the defendant’s motion for an

order of judgment (document no. 93) is denied. Martinson shall

file his response to the FTC’s proposed “Order of Judgment for

Permanent Injunction and Other Equitable Relief against John

Robert Martinson, Mailwiper, Inc., and Spy Deleter, Inc.” and the

FTC’s request for additional discovery on or before March 6,

2006. Failure to file a response may be deemed agreement to the

proposed order and the request for additional discovery.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

February 27, 2006

cc: Stacey P. Ferguson, Esquire

Charulata B. Pagar, Esquire

Laura M. Sullivan, Esquire

Martha Van Oot, Esquire

John Robert Martinson, pro se

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