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Federal Trade Commission v. the Cuban Exchange

November 30, 2012

FEDERAL TRADE COMMISSION, PLAINTIFF,
v.
THE CUBAN EXCHANGE, INC., ALSO D/B/A CREDISURE AMERICA ANDALSOD/B/A MYIPAD.US, A CORPORATION, AND SUHAYLEE RIVERA, INDIVIDUALLY AND AS AN OFFICER OR DIRECTOR OF THE CUBAN EXCHANGE, INC., DEFENDANTS.



The opinion of the court was delivered by: Roslynn R. Mauskopf United States District Judge

TEMPORARY RESTRAINING ORDER

Plaintiff, the Federal Trade Commission ("FTC"), has filed its Complaint for Permanent Injunction and Other Equitable Relief pursuant to Sections 13(b) and 19 of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. §§ 53(b) and 57b, and the Telemarketing and Consumer Fraud and Abuse Prevention Act ("Telemarketing Act"), 15 U.S.C. §§ 6101-6108 (Doc. No.1), and has moved, pursuant to Federal Rule of Civil Procedure 65(b), for a Temporary Restraining Order, Other Equitable Relief, and an Order to Show Cause Why a Preliminary Injunction Should Not Issue against Defendants The Cuban Exchange, Inc., also d/b/a CrediSure America and also d/b/a MyiPad.us; and Suhaylee Rivera (collectively, "Defendants") (Doc. Nos. 2, 3, 6, 8-13.)

I.FINDINGS

The Court, upon Order to Show Cause signed and issued on November 29, 2012 (Doc. No. 8) and after a hearing held on November 30, 2012, and having considered the Complaint, the motion for a temporary restraining order, and all declarations, exhibits, and the memorandum of points and authorities, and all other papers attached in support, finds that:

A. This Court has jurisdiction over the subject matter of this case, and there is good cause to believe that it will have jurisdiction over all parties hereto, and that venue in this district is proper;

B. There is good cause to believe that Defendants have engaged in and are likely to engage in acts or practices that violate Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and the FTC's Trade Regulation Rule entitled "Telemarketing Sales Rule" ("TSR"), 16 C.F.R. Part 310, and that the FTC is therefore likely to prevail on the merits of this action;

C. There is good cause to believe that Consumers will suffer immediate and irreparable harm from Defendants' ongoing violations of Section 5(a) of the FTC Act and the TSR unless Defendants are restrained and enjoined by Order of this Court;

D. There is good cause to believe that immediate and irreparable damage to this Court's ability to grant effective final relief for Consumers (including monetary restitution, rescission, disgorgement, or refunds) will occur from the sale, transfer, destruction, or other disposition or concealment by Defendants of Documents, records, or other evidence unless Defendants are immediately restrained and enjoined by Order of this Court;

E. Good cause exists for permitting the FTC to take expedited discovery;

F. Good cause also exists for the ancillary relief ordered herein;

G. Weighing the equities and considering the FTC's likelihood of ultimate success on the merits, it is in the public interest that the Court enter a Temporary Restraining Order that temporarily: (1) enjoins Defendants from making misrepresentations and violating the TSR; (2) orders Defendants to show cause why a preliminary injunction should not issue; and (3) provides other equitable relief; and

H. The FTC is an independent agency of the United States of America and therefore, pursuant to Rule 65(c) of the Federal Rules of Civil Procedure, no security is required for issuance of a temporary restraining order.

I. Proper service of the Complaint, the Order to Show Cause, the application for a Temporary Restraining Order and all papers upon which it is based has been made upon Defendant Suhaylee Rivera . (Doc. Nos. 10-13.) And further, the FTC has provided reasonable notice to both Defendants. (Id.) And further, and for the reasons set forth at ¶¶ 19-20 of Doc. No. 10 and on the record at the Show Cause hearing held this date, the Court finds that immediate relief is necessary even absent notice and service pursuant to Fed. R. Civ. P. 65(b)(1).

II.DEFINITIONS

For the purpose of this Temporary Restraining Order ("Order"), the following definitions shall apply:

A. "Asset" or "Assets" means any legal or equitable interest in, right to, or claim to, any real, personal, or intellectual property, including chattel, goods, instruments, equipment, fixtures, general intangibles, effects, leaseholds, contracts, mail or other deliveries, shares or stock, securities, inventory, checks, notes, accounts, credits, receivables (as those terms are defined in the Uniform Commercial Code), insurance policies, lines of credit, cash, trusts (including asset protection trusts), lists of Consumer names and reserve funds or any other accounts associated with any payments processed by, or on behalf of, any Defendant, including such reserve funds held by payment processors, credit card processors, banks, or other Financial Institutions.

B. "Clear and Conspicuous" means: 1. In print communications, the message shall be presented in a manner that stands out from the accompanying text, so that it is sufficiently prominent, because of its type size, contrast to the background against which it appears, location, or other characteristics, for an ordinary Consumer to notice, read, and comprehend it in relation to any claim it may be modifying;

2. In communications made through an electronic medium (e.g., television, Internet, telephone, etc.), the message shall be presented simultaneously in both the audio and visual portions of the communication. In any communication presented solely through visual or audio means, the message shall be made through the same means in which the communication is presented. In any communication disseminated by means of an interactive electronic medium (e.g., Internet), a disclosure must be unavoidable and presented prior to the Consumer incurring any financial obligation. Any audio message shall be delivered in a volume and cadence sufficient for an ordinary Consumer to hear and comprehend it in relation to any claim it may be modifying. Any visual message shall be presented in a manner that stands out in the context in which it is presented, so that it is sufficiently prominent, because of its size and shade, contrast to the background against which it appears, length of time it appears on the screen, and its location, for an ordinary Consumer to notice, read, and comprehend it in relation to any claim it may be modifying; and

3. Regardless of the medium used to disseminate it, the message shall be in understandable language and syntax. Nothing contrary to, inconsistent with, or in mitigation of the message shall be used in any communication.

C. "Consumer" means any Person.

D. "Corporate Defendant" means The Cuban Exchange, Inc., also d/b/a CrediSure America and also d/b/a MyiPad.us, as well as all of its divisions, subsidiaries, affiliates, predecessors, successors, and assigns.

E. "Defendants" means the Individual Defendant and the Corporate Defendant, individually, collectively, or in any combination, and each of them by whatever names each might be known.

F. "Document" or "Documents" is synonymous in meaning and equal in scope to the usage of the term in Federal Rule of Civil Procedure 34(a), and encompasses both paper documents and electronically stored information-including writings, drawings, graphs, charts, Internet sites, Web pages, Web sites, electronic correspondence (including email, instant messages, text messages, and other correspondence transmitted on cell phones, smart phones, and other mobile devices), photographs, audio and video recordings, contracts, accounting data, advertisements (including advertisements placed on the Internet), FTP logs, server access logs, books, written or printed records, handwritten notes, telephone logs, telephone scripts, receipt books, ledgers, personal and business cancelled checks, check registers, bank statements, appointment books, computer records and files, mobile electronic records and files, images, and other data or data compilations-stored in any medium from which information can be obtained either directly or, if necessary, after translation by Defendants into a reasonably usable form. A draft or non-identical copy is a separate Document within the meaning of the term.

G. "Financial Institution" means any bank, savings and loan institution, credit union, or any financial depository of any kind, including any brokerage house, trustee, broker-dealer, escrow agent, title company, commodity trading company, or precious metal dealer.

H. "FTC Act" means the Federal Trade Commission Act codified at 15 U.S.C. §§ 41-58.

I. "Individual Defendant" means Suhaylee Rivera and all Persons acting on her behalf.

J. "Material" means likely to affect a Person's choice of, or conduct regarding, goods or services.

K. "National Do Not Call Registry" means the registry of telephone numbers maintained by the FTC, pursuant to Section 310.4(b)(1)(iii)(B) of the TSR, 16 C.F.R. § 310.4(b)(1)(iii)(B), of Persons who do not wish to receive Outbound Telephone Calls to induce the purchase of goods or services.

L. "Outbound Telephone Call" means a telephone call initiated by a Telemarketer to induce the purchase of goods or services or to solicit a charitable contribution.

M. "Person" shall be construed in its broadest sense and means both natural persons and artificial entities, including sole proprietorships, general partnerships, limited partnerships, joint ventures, limited liability partnerships, limited liability companies, corporations, sub-chapter S corporations, closely held corporations, professional corporations, business associations, business trusts, and all past and present officers, directors, managers, members, agents, employees, parent companies, subsidiaries, predecessors, successors, affiliates, assigns, divisions, or other persons acting or purporting to act on such person's behalf.

N. "Representative" or "Representatives" means Defendants' officers, directors, managers, members, agents, servants, employees, and attorneys, and any other Person or entity in active concert or participation with them, who receives actual notice of this Order by personal service or otherwise.

O. "Seller" means any Person who, in connection with a telemarketing transaction, provides, offers to provide, or arranges for others to provide goods or services to the customer in exchange for consideration.

P. "Telemarketer" means any Person who, in connection with Telemarketing, initiates or receives telephone calls to or from a customer or donor.

Q. "Telemarketing"means any plan, program, or campaign that is conducted to induce the purchase of goods or services or a charitable ...


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