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EXHIBIT 6.20
AGREEMENT CONTAINING CONSENT ORDER, DATED DECEMBER 18, 1996,
BY AND BETWEEN THE COMPANY AND THE FEDERAL TRADE COMMISSION
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UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
In the Matter of
KCD HOLDINGS, INC.,
KCD, INCORPORATED,
and DEERFIELD CORPORATION,
corporations, and
XXXXX X. XXXXXXX,
individually and as a former officer of
KCD Holdings, Inc., and KCD Incorporated,
XXXXXX X. XXXXXXXX,
individually and as an officer of
KCD Holdings, Inc., and KCD Incorporated,
and
XXXXXX X. XXXXX,
individually and as an officer of
Deerfield Corporation.
FILE NO. 942 3237
AGREEMENT CONTAINING
CONSENT ORDER AS TO
KCD HOLDINGS, INC.,
KCD, INCORPORATED,
DEERFIELD CORPORATION,
XXXXX X. XXXXXXX,
XXXXXX X. XXXXXXXX AND
XXXXXX X. XXXXX
The Federal Trade Commission ("Commission") has conducted an
investigation of certain acts and practices of KCD Holdings, Inc. ("KCD
Holdings"), KCD, Incorporated ("KCD"), corporations, and their former
officer, Xxxxx X. Xxxxxxx, and current officer, Xxxxxx X. Xxxxxxxx, and
Deerfield Corporation ("Deerfield"), a corporation, and its principal, Xxxxxx
X. Xxxxx ("proposed respondents"). Proposed respondents, having been
represented by counsel, are willing to enter into an agreement containing a
consent order resolving the allegations contained in the attached draft
complaint. Therefore,
IT IS HEREBY AGREED by and between KCD Holdings, KCD and Deerfield, by
their duly authorized officers, and Xxxxx X. Xxxxxxx, individually and as a
former officer of KCD
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Holdings and KCD, Xxxxxx X. Xxxxxxxx, individually and as an officer of KCD
Holdings and KCD, and Xxxxxx X. Xxxxx, individually and as a principal of
Deerfield, and counsel for the Commission that:
1.a. Proposed respondent KCD Holdings is a Nevada corporation with its
principal office or place of business at 0000 Xxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000.
1.b. Proposed respondent KCD is a California corporation with its principal
office or place of business at 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000. KCD is a wholly owned subsidiary of KCD Holdings.
1.c. Proposed respondent Deerfield is a California corporation with its
principal office or place of business at 0000 Xxxxxx Xxxx Xxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx 00000. Respondent Deerfield is an advertising agency of KCD and KCD
Holdings.
1.d. Proposed respondent Xxxxx X. Xxxxxxx was the president, director and a
majority shareholder of KCD Holdings and KCD from November 1993 through April
1996. Individually or in concert with others, he has formulated, directed,
controlled or participated in the acts and practices of KCD Holdings and KCD.
His principal office or place of business is the same as that of KCD Holdings
and KCD.
1.e. Proposed respondent Xxxxxx X. Xxxxxxxx is vice president, secretary and
director of KCD Holdings and KCD. Individually or in concert with others, she
formulates, directs, controls or participates in the acts and practices of KCD
Holdings and KCD. Her principal office or place of business is the same as that
of KCD Holdings and KCD.
1.f. Proposed respondent Xxxxxx X. Xxxxx is an officer and the owner of
Deerfield. Individually or in concert with others, he formulates, directs,
controls or participates in the acts and practices of Deerfield. His principal
office or place of business is the same as that of Deerfield.
2. Proposed respondents admit all the jurisdictional facts set forth in the
draft complaint.
3. Proposed respondents waive:
a. Any further procedural steps;
b. The requirement that the Commission's decision contain a
statement of findings of fact and conclusions of law; and
c. All rights to seek judicial review or otherwise to challenge or contest
the validity of the order entered pursuant to this agreement.
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4. This agreement shall not become part of the public record of the
proceeding unless and until it is accepted by the Commission. If this agreement
is accepted by the Commission, it, together with (the draft complaint, will be
placed on the public record for a period of sixty (60) days and information
about it publicly released. The Commission thereafter may either withdraw its
acceptance of this agreement and so notify proposed respondents, in which event
it will take such action as it may consider appropriate, or issue and serve its
complaint (in such form as (the circumstances may require) and decision in
disposition of the proceeding.
5. This agreement is for settlement purposes only and does not constitute
an admission by proposed respondents that the law has been violated as alleged
in the draft complaint, or that the facts as alleged in the draft complaint,
other than the jurisdictional facts, are true.
6. This agreement contemplates that, if it is accepted by the Commission,
and if such acceptance is not subsequently withdrawn by the Commission pursuant
to the provisions of Section 2.34 of the Commission's Rules, the Commission may,
without further notice to proposed respondents, (1) issue its complaint
corresponding in form and substance with the attached draft complaint and its
decision containing the following order in disposition of the proceeding, and
(2) make information about it public. When so entered, the order shall have the
same force and effect and may be altered, modified, or set aside in the same
manner and within the same time provided by statute for other orders. The order
shall become final upon service. Delivery of the complaint and the decision and
order to proposed respondents by any means specified in Section 4.4 of the
Commission's Rules shall constitute service. Proposed respondents waive any
right they may have to any other manner of service. The complaint may be used in
construing the terms of the order. No agreement, understanding, representation,
or interpretation not contained in the order or in the agreement may be used to
vary or contradict the terms of the order.
7. Proposed respondents have read the draft complaint and consent order.
They understand that they may be liable for civil penalties in the amount
provided by law and other appropriate relief for each violation of the order
after it becomes final.
ORDER
DEFINITIONS
For purposes of this Order, the following definitions shall apply:
1. "Competent and reliable scientific evidence" shall mean tests,
analyses, research, studies or other evidence based on the expertise of
professionals in the relevant area, that has been conducted and evaluated in an
objective manner by persons qualified to do so, using procedures generally
accepted in the profession to yield accurate and reliable results.
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2. "KCD respondents" shall mean KCD Holdings, Inc. ("KCD
Holdings"), KCD Incorporated ("KCD"), corporations, their successors and assigns
and their officers, Xxxxx X. Xxxxxxx ("Xxxxxxx"), individually and as a former
officer of the corporations; Xxxxxx X. Xxxxxxxx ("Xxxxxxxx"), individually and
as an officer of the corporations; and each of their agents, representatives and
employees.
3. "Deerfield respondents" shall mean Deerfield Corporation
("Deerfield"), a corporation, its successors and assigns and its officers;
Xxxxxx X. Xxxxx ("Hatto"), individually and as an officer of the corporation;
and each of their agents, representatives and employees.
4. Unless otherwise specified, "respondents" shall mean KCD
Holdings, KCD and Deerfield, corporations, their successors and assigns and
their officers; Xxxxxxx, Xxxxxxxx and Hatto, individually and as officers or
former officers of the corporations; and each of the above's agents,
representatives and employees.
5. "Commerce" shall mean as defined in Section 4 of the Federal
Trade Commission Act, 15 U.S.C. Section 44.
I.
IT IS ORDERED that respondents, directly or through any corporation,
subsidiary, division or other device, in connection with the labeling,
advertising, promotion, offering for sale, sale or distribution of SeQuester or
any product or program, marketed or sold under any name, in or affecting
commerce, shall not represent, in any manner, expressly or by implication, that
such product or program prevents or reduces the body's absorption of fat or
sugar from consumed food, unless the representation is true and, at the time it
is made, respondents possess and rely upon competent and reliable scientific
evidence that substantiates the representation.
II.
IT IS FURTHER ORDERED that respondents, directly or through any
corporation, subsidiary, division or other device, in connection with the
labeling, advertising, promotion, offering for sale, sale or distribution of
SeQuester or any product or program, in or affecting commerce, shall not make
any representation, in any manner, expressly or by implication, that any such
product or program:
A. Provides any weight loss benefit
B. Causes greater loss of body fat than diet and exercise alone;
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C. Allows consumers to eat high-fat foods without increasing their
risk of high cholesterol, clogged arteries, heart disease or
other health problems associated with a high-fat diet; or
D. Reduces, or reduces the risk of, high cholesterol, clogged
arteries, heart disease and other health problems associated
with a high-fat diet,
unless, at the time the representation is made, respondents possess and rely
upon competent and reliable scientific evidence that substantiates the
representation
III.
IT IS FURTHER ORDERED that the KCD respondents, directly or through any
corporation, subsidiary, division or other device, in connection with the
labeling, advertising, promotion, offering for sale, sale or distribution of
SeQuester or any product or program, in or affecting commerce, shall not make
any representation, in any manner, expressly or by implication, that any such
product or program can be used, beneficially and safely, in amounts or with
frequency sufficient to cause diarrhea, unless, at the time the representation
is made, the KCD respondents possess and rely upon competent and reliable
scientific evidence that substantiates the representation.
IV.
IT IS FURTHER ORDERED that respondents, directly or through any
corporation, subsidiary, division or other device, in connection with the
labeling, advertising, promotion, offering for sale, sale or distribution of
SeQuester or any product or program, in or affecting commerce, shall not
misrepresent, in any manner, expressly or by implication, the existence,
contents, validity, results, conclusions or interpretations of any test, study
or research.
V.
IT IS FURTHER ORDERED that respondents, directly or through any
corporation, subsidiary, division or other device, in connection with the
labeling, advertising, promotion, offering for sale, sale or distribution of
SeQuester or any product or program, in or affecting commerce, shall not make
any representation, in any manner, expressly or by implication, about the
benefits, performance, efficacy or safety of any such product or program unless,
at the time the representation is made, respondents possess and rely upon
competent and reliable evidence, which when appropriate must be competent and
reliable scientific evidence, that substantiates the representation.
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VI.
IT IS FURTHER ORDERED that with respect to the Deerfield respondents, it
shall be a defense to Sections 1, 11 and V of this order that they neither knew
nor had reason to know of an inadequacy of substantiation for any such
representation; provided further that it shall be a defense to Section IV of
this order that they neither knew nor had reason to know that the test, study or
research did not prove, demonstrate or confirm that representation.
VII.
IT IS FURTHER ORDERED that KCD Holdings, Inc., KCD Incorporated and Xxxxxx
X. Xxxxxxxx, their successors and assigns, shall deposit into an escrow account,
to be established by the Commission for the purpose of receiving payment due
under this order ("escrow account"), the sum of one hundred and fifty thousand
dollars ($150,000). This payment shall be made in the following manner:
A. By certified or cashier's check made payable to the Federal
Trade Commission, in thirteen installments, the first installment of twenty-five
thousand dollars ($25,000) to be made no later than the date that this order
becomes final; the next eleven payments of ten thousand, four hundred and
sixteen dollars ($10,416) to be made no later than the first day of each of the
following eleven months; and the final installment of ten thousand, four hundred
and twenty-four dollars ($10,424) to be made no later than one year from the
date that this order becomes final. The checks shall be deliverable to Regional
Director, Federal Trade Commission, 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxxxx 00000.
B. In the event of any default in payment, which default continues
for ten (10) days beyond the due date of payment, the entire amount due,
together with interest, as computed pursuant to 28 U.S.C. Section 1961 from the
date of default to the date of payment, shall immediately become due and
payable.
C. In order to secure payment of respondents' indebtedness to the
Commission, within seven (7) days of the date that this order becomes final,
respondents shall cause to be transferred to the Commission a security interest
in the property described in Appendix A, which property has been determined by
an independent appraisal to have a value of one hundred and twenty-five thousand
dollars ($125,000) or more in excess of all other perfected security interests,
as security for the payments required to be made by respondents in Part VII(A)
of this order. The respondents shall, within seven (7) days of the date that
this order becomes final, file all documents necessary to perfect and record
(the Commission's security interest in (the property described in Appendix A,
in conformity with appropriate state law. The respondents shall, within ten
(10) days of the date that
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this order becomes final, furnish to counsel for the Commission complete
documentation evidencing that the Commission's security interest in the property
described in Appendix A has been correctly perfected and recorded. The
Commission will release this security interest upon receipt of all payments
required by Part VII(A) of this order.
D. The funds paid by respondents, together with accrued interest,
shall, in the discretion of the Commission, be used by the Commission to
provide direct redress to purchasers of SeQuester in connection with the acts or
practices alleged in the complaint, and to pay any attendant costs of
administration. If the Commission determines, in its sole discretion, that
redress to purchasers of this product is wholly or partially impracticable or is
otherwise unwarranted, any funds not so used shall be paid to the United States
Treasury. Respondents shall be notified as to how the funds are distributed, but
shall have no right to contest the manner of distribution chosen by the
Commission. No portion of the payment as herein provided shall be deemed a
payment of any fine, penalty or punitive assessment.
E. At any time after this order becomes final, the Commission may
direct the escrow agent to transfer funds from the escrow account, including
accrued interest, to the Commission to be distributed as herein provided. The
Commission, or its representative, shall, in its sole discretion, select the
escrow agent.
F. Respondents relinquish all dominion, control and title to the
funds paid into the escrow account, and all legal and equitable title to the
funds vests in the Treasurer of the United States and in the designated
consumers. Respondents shall make no claim to or demand for return of the funds,
directly or indirectly, through counsel or otherwise; and in the event of
bankruptcy of respondents, respondents acknowledge that the funds are not part
of the debtor's estate, nor does the estate have any claim or interest therein.
VIII.
Nothing in this order shall prohibit respondents from making any
representation for any drug that is permitted in labeling for any drug under any
tentative final or final standard promulgated by the Food and Drug
Administration ("FDA"), or under any new drug application approved by the FDA.
IX.
Nothing in this order shall prohibit respondents from making any
representation for any product that is specifically permitted in labeling for
such product by regulations promulgated by the FDA pursuant to the Nutrition
Labeling and Education Act of 1990.
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X.
IT IS FURTHER ORDERED that respondents shall, for five (5) years after the
last (date of dissemination of any representation covered by this order,
maintain and upon reasonable written request make available to the Commission
for inspection and copying:
A. All advertisements or promotional materials containing the
representation;
B. All materials that were relied upon in disseminating the
representation; and
C. All tests, reports, studies, surveys, demonstrations or other
evidence in their possession or control that contradict, qualify
or call into question the representation, or the basis relied
upon for the representation, including complaints and other
communications with consumers or with governmental or consumer
protection organizations.
XI.
IT IS FURTHER ORDERED that respondents shall deliver a copy of this
order to all current and future principals, officers, directors and managers,
and to all current and future employees, agents and representatives having
responsibilities with respect to the subject matter of this order, and shall
secure from each such person a signed and dated statement acknowledging receipt
of the order, such statements to be retained by respondents for a period of five
(5) years. Respondents shall deliver this order to current personnel within
thirty (30) days after the date of service of this order, and to future
personnel within thirty (30) days after the person assumes such position or
responsibilities.
XII.
IT IS FURTHER ORDERED that respondents KCD Holdings, KCD and Deerfield,
and their successors and assigns, shall notify the Commission at least thirty
(30) days prior to any change in the corporations that may affect compliance
obligations arising under this order, including but not limited to a
dissolution, assignment, sale, merger or other action that would result in the
emergence of a successor corporation; the creation or dissolution of a
subsidiary, parent or affiliate that engages in any acts or practices subject to
this order; the proposed filing of a bankruptcy petition; or a change in
corporate name or address. Provided, however, that, with respect to any proposed
change in the corporation about which respondents learn less than thirty (30)
days prior to the date such
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action is to take place, respondents shall notify the Commission as soon as is
practicable after obtaining such knowledge. All notices required by this Part
shall be sent by certified mail to the Associate Director, Division of
Enforcement, Bureau of Consumer Protection, Xxxxxxx Xxxxx Xxxxxxxxxx,
Xxxxxxxxxx, X.X. 00000.
XIII.
IT IS FURTHER ORDERED that respondents Holcomb, Richards, and Hatto
shall, for a period of five (5) years after the date of issuance of this order,
notify the Commission within thirty (30) days of the discontinuance of their
current business or employment, and of their affiliation with any new business
or employment. The notice shall include the respondents' new business addresses
and telephone numbers, current home addresses, and a description of the nature
of the business or employment and their duties and responsibilities. All notices
required by this Part shall be sent by certified mail to the Associate Director,
Division of Enforcement, Bureau of Consumer Protection, Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxx, X.X. 00000.
XIV.
IT IS FURTHER ORDERED that respondents shall, within sixty (60) days
after the date of service of this order, and at other such times as the Federal
Trade Commission may require, file with the Commission a report, in writing,
setting forth in detail the manner and form in which they have complied with
this order.
XV.
This order will terminate twenty (20) years from the date of its
issuance, or twenty (20) years from the most recent date that the United States
or the Federal Trade Commission files a complaint (with or without an
accompanying consent decree) in federal court alleging any violation of the
order, whichever comes later; provided, however, that the filing of such a
complaint will not affect the duration of:
A. Any Part in this order that terminates in less than twenty (20)
years;
B. This order's application to any respondent that is not named as
a defendant in such complaint; and
C. This order if such complaint is filed after (the order has
terminated pursuant to this Part.
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Provided, further that if such complaint is dismissed or a federal court rules
that the respondent did not violate any provision of the order, and the
dismissal or ruling is either not appealed or upheld on appeal, then the order
will terminate according to this Part as though the complaint had never been
filed, except that the order will not terminate between the date such complaint
is filed and the later of the deadline for appealing such dismissal or ruling
and the date such dismissal or ruling is upheld on appeal.
Signed this day of , 1996
KCD HOLDINGS, INC. AND KCD, INCORPORATED
-------------------------------------------
By: President and Chief Executive Officer
DEERFIELD CORPORATION
------------------------------------------
By: XXXXXX X. XXXXX
Officer and Principal
-----------------------------------------------
XXXXX X. XXXXXXX, individually and as a former
officer of KCD Holdings, Inc., and KCD,
Incorporated
------------------------------------------------
XXXXXX X. XXXXXXXX, individually and as an
officer of KCD Holdings, Inc., and KCD,
Incorporated
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_______________________________________________
XXXXXX X. XXXXX, individually and as an officer
and principal of Deerfield Corporation
_______________________________________________
XXXXXXXX X. XXXXXX
Venable, Baetjer, Xxxxxx & Civiletti, LLP
0000 Xxx Xxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000-0000
Attorney for Respondents
_______________________________________________
XXXXXX X. XXXXXX
Counsel for the Federal Trade Commission
APPROVED:
_______________________________
XXXXXXX X. XXXXXXX
Regional Director
Seattle Regional Office
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