UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 11-61072-CIV-ZLOCH FEDERAL TRADE COMMISSION, Plaintiff, O R D E R vs. AMERICAN PRECIOUS METALS, LLC, HARRY R. TANNER, JR, ANDREA TANNER, and SAM J. GOLDMAN a/k/a SAMMY JOE GOLDMAN, Defendants. / PRELIMINARY INJUNCTION AGAINST DEFENDANT SAM J. GOLDMAN Plaintiff Federal Trade Commission (“Commission” or “FTC”), 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, filed its First Amended Complaint for Injunctive and Other Equitable Relief (DE 155) and moved for a preliminary injunction against Sam J. Goldman, pursuant to Rule 65(b) of the Federal Rules of Civil Procedure. A Preliminary Injunction hearing was held before the Court on December 13, 2011, at which time the Court heard evidence from Melissa Davis, Mark Erenstein, and Ted Romeo on behalf of the Government. The Court determined that Plaintiff was likely to succeed on the merits of its action and that the balance of equities favors entry of a preliminary injunction against Defendant Sam J. Goldman. Case 0:11-cv-61072-WJZ Document 215 Entered on FLSD Docket 12/28/2011 Page 1 of 25
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SOUTHERN DISTRICT OF FLORIDA FEDERAL TRADE COMMISSION,€¦ · a/k/a SAMMY JOE GOLDMAN, Defendants. / PRELIMINARY INJUNCTION AGAINST DEFENDANT SAM J. GOLDMAN Plaintiff Federal Trade
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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-61072-CIV-ZLOCH
FEDERAL TRADE COMMISSION,
Plaintiff,O R D E R
vs.
AMERICAN PRECIOUS METALS, LLC,HARRY R. TANNER, JR, ANDREATANNER, and SAM J. GOLDMANa/k/a SAMMY JOE GOLDMAN,
Defendants. /
PRELIMINARY INJUNCTION AGAINST DEFENDANT SAM J. GOLDMAN
Plaintiff Federal Trade Commission (“Commission” or “FTC”),
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, filed its First Amended Complaint for
Injunctive and Other Equitable Relief (DE 155) and moved for a
preliminary injunction against Sam J. Goldman, pursuant to Rule
65(b) of the Federal Rules of Civil Procedure. A Preliminary
Injunction hearing was held before the Court on December 13, 2011,
at which time the Court heard evidence from Melissa Davis, Mark
Erenstein, and Ted Romeo on behalf of the Government. The Court
determined that Plaintiff was likely to succeed on the merits of
its action and that the balance of equities favors entry of a
preliminary injunction against Defendant Sam J. Goldman.
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This Court previously entered a Stipulated Preliminary
Injunction against Defendants American Precious Metals, LLC, Harry
R. Tanner, Jr., and Andrea Tanner (DE 54), which shall remain in
effect until adjudication on the merits of the case or further
order of the Court. Now, therefore, it is hereby ORDERED,
ADJUDGED, AND DECREED as follows:
FINDINGS
1. The Court has jurisdiction over the subject matter of
this case and jurisdiction over all Parties.
2. Venue in the United States District Court, Southern
District of Florida, Ft. Lauderdale Division is proper under 28
U.S.C. § 1391(b) and (c) and 15 U.S.C. § 53(b).
3. There is good cause to believe that Defendant Sam J.
Goldman has engaged, and is likely to continue to engage, in acts
or practices that violate Section 5(a) of the FTC Act, 15 U.S.C. §
45(a), as well as various provisions of the Telemarketing Sales
Rule (“TSR”), 16 C.F.R. Part 310, and that the FTC is likely to
prevail on the merits of this action.
4. There is good cause to believe that consumers will suffer
harm unless Defendant Goldman is restrained by an order of this
Court.
5. There is good cause to believe that irreparable damage to
the Court’s ability to grant effective final relief for consumers
in the form of monetary restitution will occur from the sale,
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transfer, or other disposition or concealment by Defendant Goldman
of his assets or documents unless he is restrained and enjoined by
Order of this Court. There is thus good cause for imposition of an
asset freeze against Defendant Goldman and for the continuation of
the receivership that was imposed by the May 24, 2011 Stipulated
Preliminary Injunction. (DE 54).
6. No security is required of any agency of the United
States for issuance of a preliminary injunction, Fed. R. Civ. P.
65(c).
7. Balancing the equities and considering the FTC’s
likelihood of success on the merits, the entry of this preliminary
injunction is in the public interest.
DEFINITIONS
For the purposes of this Preliminary Injunction, the following
definitions apply:
1. “Asset” or “assets” means any legal or equitable interest
in, right to, or claim to any item of economic value in whole or in
part, whether tangible or intangible, and, including, but not
limited to, accounts, accounts receivables, cash, certificates of
and other persons seeking to establish or enforce any claim, right,
or interest against or on behalf of the Receivership Defendant or
Defendant Goldman, and all others acting for or on behalf of such
persons, including attorneys, trustees, agents, sheriffs,
constables, marshals, and other officers and their deputies, and
their respective attorneys, servants, agents, and employees be and
are hereby stayed from:
1. Commencing, prosecuting, continuing, entering, or
enforcing any suit or proceeding, except that such
actions may be filed to toll any applicable statute
of limitations;
2. Accelerating the due date of any obligation or
claimed obligation; filing or enforcing any lien;
taking or attempting to take possession, custody,
or control of any asset; attempting to foreclose,
forfeit, alter, or terminate any interest in any
asset, whether such acts are part of a judicial
proceeding, are acts of self-help, or otherwise;
3. Executing, issuing, serving, or causing the
execution, issuance or service of, any legal
process, including, but not limited to,
attachments, garnishments, subpoenas, writs of
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replevin, writs of execution, or any other form of
process whether specified in this Order or not; or
4. Doing any act or thing whatsoever to interfere with
the Receiver’s taking custody, control, possession,
or management of the assets or documents subject to
this receivership; or to harass or interfere with
the Receiver in any way; or to interfere in any
manner with the exclusive jurisdiction of this
Court over the assets or documents of the
Receivership Defendant.
B. This Section does not stay:
1. The commencement or continuation of a criminal
action or proceeding;
2. The commencement or continuation of an action or
proceeding by a governmental unit to enforce such
governmental unit’s police or regulatory power;
3. The enforcement of a judgment, other than a money
judgment, obtained in an action or proceeding by a
governmental unit to enforce such governmental
unit’s police or regulatory power;
4. The commencement of any action by the Secretary of
the United States Department of Housing and Urban
Development to foreclose a mortgage or deed of
trust in any case in which the mortgage or deed of
trust held by the Secretary is insured or was
formerly insured under the National Housing Act and
covers property, or combinations of property,
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consisting of five (5) or more living units; or
5. The issuance to a Receivership Defendant of a
notice of tax deficiency.
XVI.MONITORING COMPLIANCE WITH THIS ORDER
IT IS FURTHER ORDERED that, for purposes of monitoring
compliance with Section I of this Order, the FTC is authorized to
use all lawful means, including, but not limited to, posing as
consumers and suppliers to Defendants, their employees, or any
other entity managed or controlled in whole or in part by any
Defendant, without the necessity of identification or prior notice.
XVII.PROOF OF DISTRIBUTION OF ORDER BY DEFENDANT GOLDMAN
IT IS FURTHER ORDERED that Defendant Goldman shall immediately
provide a copy of this Order to his officers, agents, servants,
employees, attorneys, and independent contractors, and any
affiliated businesses, and other persons and entities subject in
any part to their direct or indirect control. Within five (5)
business days of receipt of this Order, Defendant Goldman must
submit to counsel for Plaintiff a truthful sworn statement
identifying those persons and entities to whom this Order has been
distributed.
XVIII. ACKNOWLEDGMENT OF RECEIPT OF ORDER BY DEFENDANTS
IT IS FURTHER ORDERED that Defendant Goldman, within five (5)
business days of entry of this Order, must submit to Plaintiff a
truthful sworn statement acknowledging having received and read
this Order.
XIX.CORRESPONDENCE WITH AND NOTICE TO PLAINTIFF
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IT IS FURTHER ORDERED that for purposes of this Order, all
correspondence and pleadings to the Commission shall be addressed
to:
Dama J. Brown Barbara BoltonFederal Trade Commission 225 Peachtree Street NE, Suite 1500Atlanta, Georgia 30303 Facsimile number (404) 656-1379Email: [email protected]; [email protected]; [email protected]
XX.RETENTION OF JURISDICTION
IT IS FURTHER ORDERED that the Court shall continue to retain
jurisdiction of this matter for all purposes.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward
County, Florida, this 28th day of December, 2011.
________________________________WILLIAM J. ZLOCHUnited States District Judge
Copies furnished:
All Counsel of Record
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