Gov Uscourts NVD 109469 56 0

Case
Case2:15-cv-01512-JCM-CWH
2:15-cv-01512-JCM-CWH Document
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DAVID C. SHONKA
Acting General Counsel
GREGORY A. ASHE
BRIAN S. SHULL
Federal Trade Commission
600 Pennsylvania Avenue NW
Washington, DC 20850
Telephone: 202-326-3719 (Ashe)
Telephone: 202 -326-3720 (Shull)
Facsimile: 202-326-3768
Email: [email protected], [email protected]
DANIEL G. BOGDEN
United States Attorney
BLAINE T. WELSH
Assistant United States Attorney
Nevada Bar No. 4790
333 Las Vegas Blvd. South, Suite 5000
Las Vegas, Nevada 89101
Phone: (702) 388-6336
Facsimile: (702) 388-6787
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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FEDERAL TRADE COMMISSION,

Plaintiff,
Case No. 2:15-cv-01512-JCM-CWH
v.
[proposed] STIPULATED ORDER

FOR PERMANENT INJUNCTION
AND SETTLEMENT OF CLAIMS
AS TO DEFENDANT JASON
KOTZKER
SEQUOIA ONE, LLC, et al.,
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Defendants.
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Plaintiff, the Federal Trade Commission (FTC), filed its Complaint for Permanent
25
Injunction and Other Equitable Relief (Complaint) for a permanent injunction and other
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equitable relief in this matter, pursuant to Section 13(b) of the Federal Trade Commission Act
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(FTC Act), 15 U.S.C. 53(b). Pursuant to Federal Rule of Evidence 408 and the protections
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afforded therein, the FTC and Defendant Jason Kotzker stipulate to the entry of a Final Order for
Permanent Injunction and Settlement of Claims (Order) to resolve all matters in dispute in this
action between them.
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FINDINGS
By stipulation of the parties, the Court finds as follows:
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1. This is an action by the FTC instituted under Section 13(b) of the FTC Act, 15 U.S.C.
53(b). The Complaint alleges that Defendants participated in unfair acts or practices in
violation of Section 5 of the FTC Act, 15 U.S.C. 45, in connection with the disclosure
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of consumers sensitive personal information. The Complaint seeks both permanent
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injunctive relief and equitable monetary relief for Defendants alleged unfair acts or
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practices as alleged therein.
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2. This Court has jurisdiction over this matter.
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3. The Stipulating Defendant neither admits nor denies any of the allegations in the
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Complaint, except as specifically stated in this Order. Only for purposes of this action,
the Stipulating Defendant admits the facts necessary to establish jurisdiction.
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4. The Stipulating Defendant waives all rights to appeal or otherwise challenge or contest
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the validity of this Order. The Stipulating Defendant also waives any claim that he may
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have held under the Equal Access to Justice Act, 28 U.S.C. 2412, concerning the
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prosecution of this action to the date of this Order. The FTC and the Stipulating
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Defendant each shall bear its own costs and attorneys fees.
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DEFINITIONS
For the purpose of this Order, the following definitions apply:
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1. Corporate Defendants means Sequoia One, LLC and Gen X Marketing Group, LLC,
and their successors and assigns.
2. Defendants means all of the Individual Defendants and the Corporate Defendants,
individually, collectively, or in any combination.
3. Financial product or service means any product, service, plan, or program
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represented, expressly or by implication, to: (a) provide any consumer, arrange for any
consumer to receive, or assist any consumer in receiving, a loan or other extension of
credit; (b) provide any consumer, arrange for any consumer to receive, or assist any
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consumer in receiving, credit, debit, or stored value cards; (c) improve, repair, or arrange
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to improve or repair, any consumers credit record, credit history, or credit rating; or (d)
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provide advice or assistance to improve any consumers credit record, credit history, or
credit rating.
4. Individual Defendants means Jason A. Kotzker, John E. Bartholomew, Jr., Theresa D.
Bartholomew, and Paul T. McDonnell.
5. Lender means any Person who provides or issues loans or other extensions of credit.
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6. Person means a natural person, organization, or other legal entity, including a
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corporation, partnership, proprietorship, association, cooperative, or any other group or
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combination acting as an entity.
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7. Sensitive Personal Information means any of the following about a consumer: (a)
Social Security number; (b) financial institution account number; (c) credit or debit card
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information; or (d) any other information by which a consumers financial account can be
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accessed, or by which a consumer might be charged for goods or services, including
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through third parties such as telecommunications carriers.
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8. Stipulating Defendant means Jason A. Kotzker and by whatever names he might be
known.
ORDER
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PROHIBITION ON THE DISCLOSURE OF SENSITIVE PERSONAL INFORMATION

I.
IT IS THEREFORE ORDERED that the Stipulating Defendant is hereby permanently
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restrained and enjoined from, or assisting others engaged in, selling, transferring, or
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otherwise disclosing the Sensitive Personal Information of a consumer (other than the
Stipulating Defendant and his immediate family) to any Person; provided, however, that
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this Section I shall not prohibit the Stipulating Defendant from transferring or otherwise
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disclosing a consumers Sensitive Personal Information to the extent necessary to process
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payment for any product or service sold by that Stipulating Defendant directly to that
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consumer and for which that Stipulating Defendant has the consumers express, informed
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consent for that sale.
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PROHIBITED MISREPRESENTATIONS RELATING TO FINANCIAL RELATED

PRODUCTS OR SERVICES
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II.
IT IS FURTHER ORDERED that the Stipulating Defendant and his officers, agents,
employees, and attorneys, and those Persons or entities in active concert or participation
with any of them who receive actual notice of this Order by personal service, facsimile
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transmission, email, or otherwise, whether acting directly or indirectly, in connection
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with the advertising, marketing, promotion, offering for sale, or selling of any Financial
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product or service, are hereby permanently restrained and enjoined from misrepresenting
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or assisting others in misrepresenting, expressly or by implication:
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A. The likelihood that any Person will obtain a loan or other extension of credit; and
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B. The terms or rates that are available for any loan or other extension of credit.
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PROHIBITED MISREPRESENTATIONS RELATING TO ALL PRODUCTS OR

SERVICES
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III.
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transmission, email, or otherwise, whether acting directly or indirectly, in connection
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with the advertising, marketing, promotion, offering for sale, or selling of any product or
service, are hereby permanently restrained and enjoined from misrepresenting or assisting
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others in misrepresenting, expressly or by implication:
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A. That a consumer has authorized or otherwise consented to the purchase of a product
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or service;
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B. That any particular outcome or result from a product or service is guaranteed,
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assured, highly likely or probable, or very likely or probable;
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C. The nature or terms of any refund, cancellation, exchange, or repurchase policy,
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including, but not limited to, the likelihood of a consumer obtaining a full or partial
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refund, or the circumstances in which a full or partial refund will be provided to the
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consumer; and
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D. Any other fact material to consumers concerning any product or service, such as: the
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total costs; any material restrictions, limitations, or conditions; or any material aspect
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of its performance, efficacy, nature, or central characteristics.
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CONSUMER INFORMATION
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IV.
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transmission, email, or otherwise, whether acting directly or indirectly, are permanently
restrained and enjoined from directly or indirectly:
A. Failing to provide sufficient customer information to enable the FTC to administer
efficiently consumer redress. If a representative of the FTC requests in writing any
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information related to redress, the Stipulating Defendant must provide it, in the form
prescribed by the FTC, within 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
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information, or any data that enables access to a customers account (including a
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credit card, bank account, or other financial account) that any Defendant obtained
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prior to entry of this Order in connection with the marketing or offering of payday
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loans or other extensions of credit.
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C. Failing to destroy such customer information in all forms in their possession, custody,
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or control within thirty (30) days after receipt of written direction to do so from a
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representative of the FTC.
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D. Provided, however, that customer information need not be disposed of, and may be
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disclosed, to the extent requested by a government agency or required by a law,
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regulation, or court order.
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MONETARY JUDGMENT AND SUSPENSION
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V.
IT IS FURTHER ORDERED that:

A. Judgment in the amount of SEVEN MILLION, ONE HUNDRED THIRTY-FIVE
THOUSAND, NINE HUNDRED AND NINETY-TWO DOLLARS ($7,135,992) is
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entered in favor of the FTC against the Stipulating Defendant, jointly and severally
with any other Defendant in this action against whom judgment may be entered, as
equitable monetary relief.
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B. The Stipulating Defendant is ordered to pay to the Commission $45,000. Such

payment must be made within 120 days of entry of this order by electronic fund
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transfer in accordance with instructions provided by a representative of the

Commission.
C. Upon the asset transfers identified in this Section, the remainder of the judgment is
suspended as to the Stipulating Defendant, subject to the Subsections below.
D. The FTCs agreement to the suspension of the judgment is expressly premised upon
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the truthfulness, accuracy, and completeness of the Stipulating Defendants sworn
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financial statements and related documents (collectively, financial representations)
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submitted to the FTC, namely the Financial Statement of Individual Defendant Jason
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Kotzker signed on January 13, 2016, including the attachments.
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E. The suspension of the judgment will be lifted as to the Stipulating Defendant if, upon
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motion by the FTC, the Court finds that the Stipulating Defendant failed to disclose
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any material asset, materially misstated the value of any asset, or made any other
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material misstatement or omission in the financial representations identified above.
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F. If the suspension of the judgment is lifted, the judgment becomes immediately due as
to the Stipulating Defendant in the amount specified in Subsection A above (which
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the parties stipulate only for purposes of this Section represents the consumer injury
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alleged in the Complaint), less any payment previously made pursuant to this Section,
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plus interest computed from the date of entry of this Order.
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G. All money paid to the FTC pursuant to this Order may be deposited into a fund
administered by the FTC or its designee to be used for equitable relief, including
consumer redress and any attendant expenses for the administration of any redress
fund. If a representative of the FTC decides that direct redress to consumers is
wholly or partially impracticable or money remains after redress is completed, the
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FTC may apply any remaining money for such other equitable relief (including
consumer information remedies) as the FTC determines to be reasonably related to
the Defendants practices alleged in the Complaint. Any money not used for such
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equitable relief is to be deposited to the United States Treasury as equitable
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disgorgement. Defendants have no right to challenge any actions the FTC or its
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representatives may take pursuant to this Subsection.

H. The Stipulating Defendant relinquishes dominion and all legal and equitable right,
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title, and interest in all assets transferred pursuant to this Order and may not seek the
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return of any assets.
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I. The facts alleged in the Complaint will be taken as true, without further proof, in any
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subsequent civil litigation by or on behalf of the FTC in a proceeding to enforce its
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rights to any payment or monetary judgment pursuant to this Order, such as a
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nondischargeability complaint in any bankruptcy case.
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J. The facts alleged in the Complaint establish all elements necessary to sustain an
action by the FTC pursuant to Section 523(a)(2)(A) of the Bankruptcy Code, 11
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U.S.C. 523(a)(2)(A), and this Order will have collateral estoppel effect for such
purposes.
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K. The Stipulating Defendant acknowledges that his Taxpayer Identification Numbers
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(Social Security Numbers or Employer Identification Numbers), which the
Stipulating Defendant previously submitted to the FTC, 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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L. Upon written request from a representative of the FTC, any consumer reporting
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agency may furnish consumer reports concerning the Stipulating Defendant, pursuant
to Section 604(a)(1) of the Fair Credit Reporting Act, 15 U.S.C. 1681b(a)(1).
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ORDER ACKNOWLEDGMENTS
VI.
IT IS FURTHER ORDERED that the Stipulating Defendant obtain acknowledgments
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of receipt of this Order:

A. The Stipulating Defendant, within 7 days of entry of this Order, must submit to the
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FTC an acknowledgment of receipt of this Order sworn under penalty of perjury.
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B. For five 5 years after entry of this Order, the Stipulating Defendant for any business
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that such Defendant, individually or collectively with any other Defendants, is the
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majority owner or controls directly or indirectly, must deliver a copy of this Order to:
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(1) all principals, officers, directors, and LLC managers and members; (2) all
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employees, agents, and representatives who participate in conduct related to the
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subject matter of the Order; and (3) any business entity resulting from any change in
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structure as set forth in the Section titled Compliance Reporting. Delivery must occur
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within 7 days of entry of this Order for current personnel. For all others, delivery
must occur before they assume their responsibilities.
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C. From each individual or entity to which the Stipulating Defendant delivered a copy of
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this Order, the Stipulating Defendant must obtain, within 30 days, a signed and dated
acknowledgment of receipt of this Order.
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COMPLIANCE REPORTING
VII.
IT IS FURTHER ORDERED that the Stipulating Defendant make timely submissions
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to the FTC:
A. One year after entry of this Order, the Stipulating Defendant must submit a
compliance report, sworn under penalty of perjury:
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1. The Stipulating Defendant must: (a) identify the primary physical, postal, and
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email address and telephone number, as designated points of contact, which
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representatives of the FTC may use to communicate with the Stipulating
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Defendant; (b) identify all of the Stipulating Defendants businesses by all of their
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names, telephone numbers, and physical, postal, email, and Internet addresses; (c)
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describe the activities of each business, including the goods and services offered,
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the means of advertising, marketing, and sales, and the involvement of any other
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Defendant (which the Stipulating Defendant must describe if he knows or should
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know due to his own involvement); (d) describe in detail whether and how the
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Stipulating Defendant is in compliance with each Section of this Order; and (e)
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provide a copy of each Order Acknowledgment obtained pursuant to this Order,
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unless previously submitted to the FTC.
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2. Additionally, the Stipulating Defendant must: (a) identify all telephone numbers
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and all physical, postal, email and Internet addresses, including all residences; (b)
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identify all business activities, including any business for which the Stipulating
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Defendant performs services whether as an employee or otherwise and any entity
in which the Stipulating Defendant has any ownership interest; and (c) describe in
detail such Stipulating Defendants involvement in each such business, including
title, role, responsibilities, participation, authority, control, and any ownership.
B. For 10 years following entry of this Order, the Stipulating Defendant must submit a
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compliance notice, sworn under penalty of perjury, within 14 days of any change in
the following:
1. The Stipulating Defendant must report any change in: (a) any designated point of
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contact; or (b) any entity that the Stipulating Defendant has any ownership
interest in or controls directly or indirectly that may affect compliance obligations
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arising under this Order, including: creation, merger, sale, or dissolution of the
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entity or any subsidiary, parent, or affiliate that engages in any acts or practices
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subject to this Order.
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2. Additionally, the Stipulating Defendant must report any change in: (a) name,
including aliases or fictitious name, or residence address; or (b) title or role in any
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business activity, including any business for which the Stipulating Defendant
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performs services whether as an employee or otherwise and any entity in which
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the Stipulating Defendant has any ownership interest, and identify the name,
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physical address, and any Internet address of the business or entity.
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C. The Stipulating Defendant must submit to the FTC notice of the filing of any
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bankruptcy petition, insolvency proceeding, or similar proceeding by or against the

Stipulating Defendant within 14 days of its filing.
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D. Any submission to the FTC 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, signatorys full name, title (if applicable), and signature.
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E. Unless otherwise directed by a FTC representative in writing, all submissions to the
FTC pursuant to this Order must be emailed to [email protected] or sent by overnight
courier (not the U.S. Postal Service) to: Associate Director for Enforcement, Bureau
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of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW,
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Washington, DC 20580. The subject line must begin: FTC v. Sequoia One, et al.
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RECORDKEEPING
VIII. IT IS FURTHER ORDERED that the Stipulating Defendant must create certain records
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for 10 years after entry of the Order, and retain each such record for 5 years.
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Specifically, the Stipulating Defendant for any business that the Stipulating Defendant,
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individually or collectively with any other Defendant, is a majority owner or controls
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directly or indirectly, must create and retain the following records:

A. Proof of consumers authorization to have their sensitive personal information
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transferred or disclosed, which includes the consumers name, phone number, and
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address; and the manner, time, place, and method of the authorization;
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B. Accounting records showing the revenues from all goods or services sold, all costs
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incurred in generating those revenues, and the resulting net profit or loss;
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C. Personnel records showing, for each person providing services, whether as an
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employee or otherwise, that persons: name, addresses, and telephone numbers; job
title or position; dates of service; and, if applicable, the reason for termination;
D. Records of all consumer complaints and refund requests, whether received directly or
indirectly, such as through a third party, and any response;
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E. All records necessary to demonstrate full compliance with each provision of this
Order, including all submissions to the FTC; and
F. A copy of each advertisement or other marketing material.
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COMPLIANCE MONITORING
IX.
IT IS FURTHER ORDERED that, for the purpose of monitoring the Stipulating
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Defendants compliance with this Order, including the financial representations upon
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which part of the judgment was suspended and any failure to transfer any assets as
15
required by this Order:
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A. Within 14 days of receipt of a written request from a representative of the FTC, the
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Stipulating Defendant must: submit additional compliance reports or other requested
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information, which must be sworn under penalty of perjury; appear for depositions;
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and produce documents, for inspection and copying. The FTC is also authorized to
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obtain discovery, without further leave of Court, using any of the procedures
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prescribed by Federal Rules of Civil Procedure 29, 30 (including telephonic
23
depositions), 31, 33, 34, 36, 45, and 69.
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B. For matters concerning this Order, the FTC is authorized to communicate directly
26
with each Stipulating Defendant. The Stipulating Defendant must permit
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representatives of the FTC to interview any employee or other person affiliated with
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the Stipulating Defendant who has agreed to such an interview. The person
interviewed may have counsel present.
C. The FTC may use all other lawful means, including posing, through its
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representatives, as consumers, suppliers, or other individuals or entities, to the
Stipulating Defendant or any individual or entity affiliated with the Stipulating
6
Defendant, without the necessity of identification or prior notice. Nothing in this
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Order limits the FTCs lawful use of compulsory process, pursuant to Sections 9 and
20 of the FTC Act, 15 U.S.C. 49, 57b-1.
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ENTRY OF JUDGMENT
X.
IT IS FURTHER ORDERED that there is no just reason for delay of entry of this
12
judgment, and that, pursuant to Federal Rule of Civil Procedure 54(b), the Clerk
13
immediately shall enter this Order as a final judgment as to defendant Jason A. Kotzker.
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RETENTION OF JURISDICTION
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XI.
IT IS FURTHER ORDERED that this Court retains jurisdiction of this matter for
purposes of construction, modification, and enforcement of this Order.
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IT IS SO ORDERED:
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________________________________________
UNITED STATES DISTRICT JUDGE
November 2, 2016
DATED:______________________________
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Case

FEDERAL TRADE COMMISSION,

Case No. 2:15-cv-01512-JCM-CWH

[proposed] STIPULATED ORDER

SEQUOIA ONE, LLC, et al.,

action between them.

of consumers sensitive personal information. The Complaint seeks both permanent

practices as alleged therein.

2. This Court has jurisdiction over this matter.

consumer to receive, or assist any consumer in receiving, a loan or other extension of

6. Person means a natural person, organization, or other legal entity, including a

corporation, partnership, proprietorship, association, cooperative, or any other group or

combination acting as an entity.

accessed, or by which a consumer might be charged for goods or services, including

through third parties such as telecommunications carriers.

8. Stipulating Defendant means Jason A. Kotzker and by whatever names he might be

PROHIBITION ON THE DISCLOSURE OF SENSITIVE PERSONAL INFORMATION

IT IS THEREFORE ORDERED that the Stipulating Defendant is hereby permanently

disclosing a consumers Sensitive Personal Information to the extent necessary to process

consent for that sale.

PROHIBITED MISREPRESENTATIONS RELATING TO FINANCIAL RELATED

transmission, email, or otherwise, whether acting directly or indirectly, in connection

or assisting others in misrepresenting, expressly or by implication:

PROHIBITED MISREPRESENTATIONS RELATING TO ALL PRODUCTS OR

others in misrepresenting, expressly or by implication:

A. That a consumer has authorized or otherwise consented to the purchase of a product

B. That any particular outcome or result from a product or service is guaranteed,

assured, highly likely or probable, or very likely or probable;

C. The nature or terms of any refund, cancellation, exchange, or repurchase policy,

of its performance, efficacy, nature, or central characteristics.

transmission, email, or otherwise, whether acting directly or indirectly, are permanently

restrained and enjoined from directly or indirectly:

A. Failing to provide sufficient customer information to enable the FTC to administer

efficiently consumer redress. If a representative of the FTC requests in writing any

prescribed by the FTC, within 14 days.

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

information, or any data that enables access to a customers account (including a

loans or other extensions of credit.

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

regulation, or court order.

MONETARY JUDGMENT AND SUSPENSION

IT IS FURTHER ORDERED that:

equitable monetary relief.

B. The Stipulating Defendant is ordered to pay to the Commission $45,000. Such

transfer in accordance with instructions provided by a representative of the

the truthfulness, accuracy, and completeness of the Stipulating Defendants sworn

financial statements and related documents (collectively, financial representations)

Kotzker signed on January 13, 2016, including the attachments.

material misstatement or omission in the financial representations identified above.

plus interest computed from the date of entry of this Order.

fund. If a representative of the FTC decides that direct redress to consumers is

wholly or partially impracticable or money remains after redress is completed, the

consumer information remedies) as the FTC determines to be reasonably related to

equitable relief is to be deposited to the United States Treasury as equitable

representatives may take pursuant to this Subsection.

return of any assets.

subsequent civil litigation by or on behalf of the FTC in a proceeding to enforce its

rights to any payment or monetary judgment pursuant to this Order, such as a

nondischargeability complaint in any bankruptcy case.

K. The Stipulating Defendant acknowledges that his Taxpayer Identification Numbers

(Social Security Numbers or Employer Identification Numbers), which the

to Section 604(a)(1) of the Fair Credit Reporting Act, 15 U.S.C. 1681b(a)(1).