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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ) FEDERAL TRADE COMMISSION, ) ) Plaintiff, }) Case No. 03 C 2540 ) v. } Judge James B. Zagel ) BRIAN D. WESTBY, ) Magistrate Judge Arlander Keys ) Defendant. ) — —__) STIPULATED ORDER OF PRELIMINARY INJUNC: Plaintiff Federal Trade Commission (“Commission” or “FTC”), pursuant to Section 13(b) of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. § 53(b), filed a Complaint for a Permanent Injunction and Other Reliefin this matter and motion for a Temporary Restraining Order (“TRO”) and Other Equitable Relief, and for an Order to show cause why a Preliminary Injunction should not be granted pursuant to Rule 65 of the Federal Rules of Civil Procedure. FINDINGS OF FACT Having considered the pleadings, declarations, exhibits and memoranda filed in support of the Commission’s TRO motion, the Court finds that: 1. This Courthas jurisdiction over the subject matter of the case, and there is good cause to believe that the Court will have jurisdiction over the parties. Venue properly lies with this Court. 3, Plaintiff's Complaint states a claim upon which relief may be granted against Defendant Brian D. Westby under Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). o00sT043:1 4. Weighing the equities and considering the Commission's likelihood of success, this Order is in the public interest; 5, No security is required of any agency of the United States for issuance of a restraining, order. See Fed. R. Civ. P. 65(c); and 6. Defendant, by agreeing and stipulating to this Order, makes no admission as to the truth of Plaintiff's allegations and specifically denies them. In addition, the stipulation and entry of this Order is not to be construed or deemed a waiver of any claims or defenses that may be raised in this action. Furthermore, the prohibitory and mandatory provisions of this Order shall not be deemed or construed to indicate or establish that the Defendant has committed, or threaten to commit, any act or omission restrained or enjoined by the Court. DEFINITIONS 1, “Defendant” means Brian D. Westby. 2. “Plaintiff” means Federal Trade Commission. 3. “Document” is synonymous in meaning and equal in scope to the term, as defined in Federal Rule of Civil Procedure 34(a), and includes writings, drawings, graphs, charts, photographs, audio and video recordings, computer records, and other data compilations from which information can be obtained and translated, if necessary, through detection devices into reasonably usable form. ‘A draft or non-identical copy isa separate document within the meaning of this term. 4. “Asset” or “Assets” means any legal or equitable interest in, right to, or claim to, any real and/or personal property, including without limitation, chattels, goods, instruments, equipment, fixtures, general intangibles, leaseholds, mail or other deliveries, inventory, checks, notes, accounts, credits, contracts, receivables, shares of stock, and all cash, wherever located. 0005704331 “Unsolicited Commercial E-Mail" shall mean any e-mail message that consists of or contains a communication advertising, promoting, soliciting, offering, or offering to sell any product, any service, or any form of donation or charitable contribution, not requested by the addressee or recipient or sent pursuant to a pre-existing business or personal relationship between the sender and the addressee or recipient of the e-mail; 6. “Spoofing” means the practice of disguising an e-mail to make the e-mail appear to ‘come from an address from which it actually did not originate. Spoofing involves placing in the “rom” or “Reply-to” lines, of in other portions of e-mail messages, an e-mail address other than the actual sender’s address, without the consent or authorization of the user of the e-mail address whose address is spoofed; and 7. “Material” means likely to affect a person’s choice of, or conduct regarding, goods or services. J. INJUNCTION AGAINST MISREPRESENTATIONS IT IS THEREFORE ORDERED that, in connection with the advertising, promotion, offering or sale of goods or services in commerce, Defendant Brian D. Westby, and any agent, servant, employee, salesperson, affiliate, successor, and any other person or entity in active concert or participation with Defendant who receives actual notice of this Order, is hereby preliminarily restrained and enjoined from making any express or implied representation or omission of material fact that is false or misleading, in any manner, directly or indirectly, to any consumer or entity, including, but not limited to, the following: ‘A. Misrepresenting that the subject line of an unsolicited commercial e-mail relates to the contents of the underlying e-mail message; 0007083:1