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Federal Trade Commission v. XXL Impressions LLC

United States District Court, D. Maine

March 10, 2017

FEDERAL TRADE COMMISSION and STATE OF MAINE, Plaintiffs,
v.
XXL IMPRESSIONS LLC, a limited liability company, also d/b/a BETTER HEALTH NUTRITIONALS, JEFFREY R. POWLOWSKY, individually and as an owner and officer of XXL IMPRESSIONS LLC, J2 RESPONSE L.L.P., a limited liability partnership, also d/b/a J2 RESPONSE, JUSTIN BUMANN, individually and as a partner of J2 RESPONSE L.L.P., JUSTIN STEINLE, individually and as a partner of J2 RESPONSE L.L.P., SYNERGIXX, LLC, a limited liability company, also d/b/a CTF MEDIA, CHARLIE R. FUSCO, individually and as an owner and officer of SYNERGIXX, LLC, RONALD JAHNER, and BRAZOS MINSHEW a/k/a SAMUEL BRANT, Defendants.

          DAVID C. SHONKA Acting General Counsel James A. Prunty David P. Frankel Federal Trade Commission Attorneys for Plaintiff FEDERAL TRADE COMMISSION

          JANET T. MILLS Attorney General, State of Maine Brendan F.X. O'Neil Assistant Attorney General

          Defendant Brazos Minshew Pro Se

          STIPULATED FINAL JUDGMENT AND ORDER FOR PERMANENT INJUNCTION AND OTHER EQUITABLE RELIEF AS TO DEFENDANT BRAZOS MINSHEW, A/K/A SAMUEL BRANT

          Nancy Torresen United States Chief District Judge

         Plaintiffs, the Federal Trade Commission (“FTC” or “Commission”) and the State of Maine, as represented in this matter by the Office of the Attorney General of Maine (“Maine AG”) (“Plaintiffs”), filed a Complaint for Permanent Injunction and Other Equitable Relief against Defendants pursuant to Section 13(b) of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. § 53(b), and pursuant to Section 209 of the Maine Unfair Trade Practices Act (“Maine UTPA”), Me. Rev. Stat. tit. 5, § 209, to obtain permanent injunctive relief, rescission or reformation of contracts, restitution, the refund of monies paid, disgorgement of ill-gotten monies, and other equitable relief for Defendant's acts or practices in violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.C. §§ 45(a) and 52, and in violation of Section 207 of the Maine UTPA, Me. Rev. Stat. tit. 5, § 207, in connection with the labeling, advertising, marketing, distribution, and sale of products that purported to provide relief from back and joint pain and to prevent or mitigate cognitive decline.

         The Commission, the State of Maine, and Defendant Brazos Minshew, a/k/a Samuel Brant (“Defendant Minshew”) stipulate to the entry of this Final Judgment and Order for Permanent Injunction and Other Equitable Relief as to Defendant Minshew.

         FINDINGS

         1. This Court has jurisdiction over this matter.

         2. The Complaint charges that Defendant Minshew participated in deceptive acts or practices in violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.C. §§ 45(a) and 52, and in violation of Section 207 of the Maine UTPA, Me. Rev. Stat. tit. 5, § 207, in connection with the advertising, marketing, distribution, and sale of dietary supplements that purported to provide pain relief and to prevent or mitigate cognitive decline.

         3. Defendant Minshew neither admits nor denies any of the allegations in the Complaint, except as specifically stated in this Order. Defendant Minshew admits the facts necessary to establish jurisdiction only for purposes of this action.

         4. Defendant Minshew waives any claim that he may have under the Equal Access to Justice Act, 28 U.S.C. § 2412, concerning the prosecution of this action through the date of this Order, and agrees to bear his own costs and attorney fees.

         5. Defendant Minshew and Plaintiffs waive all rights to appeal or otherwise challenge or contest the validity of this Order.

         DEFINITIONS

         For the purpose of this Order, the following definitions apply:

         1. “Defendant” means Brazos Minshew, a/k/a Samuel Brant.

         2. “Covered Product” means any Dietary supplement, Food, or Drug, including but not limited to CogniPrin.

         3. “Dietary supplement” means:

A. any product labeled as a dietary supplement or otherwise represented as a dietary supplement; or
B. any pill, tablet, capsule, powder, softgel, gelcap, liquid, or other similar form containing one or more ingredients that are a vitamin, mineral, herb or other botanical, amino acid, probiotic, or other dietary substance for use by humans to supplement the diet by increasing the total dietary intake, or a concentrate, metabolite, constituent, extract, or combination of any ingredient described above, that is intended to be ingested, and is not represented to be used as a conventional food or as a sole item of a meal or the diet.

         4. “Drug” means: (1) articles recognized in the official United States Pharmacopoeia, official Homoeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; (2) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or other animals; (3) articles (other than food) intended to affect the structure or any function of the body of humans or other animals; and (4) articles intended for use as a component of any article specified in (1), (2), or (3); but does not include devices or their components, parts, or accessories.

         5. “Essentially Equivalent Product” means a product that contains the identical ingredients, except for inactive ingredients (e.g., binders, colors, fillers, excipients), in the same form and dosage, and with the same route of administration (e.g., orally, sublingually), as the Covered Product; provided that the Covered Product may contain additional ingredients if reliable scientific evidence generally accepted by experts in the field indicates that the amount and combination of additional ingredients is unlikely to impede or inhibit the effectiveness of the ingredients in the Essentially Equivalent Product.

         6. “Food” means: (1) any article used for food or drink for humans or other animals; (2) chewing gum; and (3) any article used for components of any such article.

         7. “Including” means including but not limited to.

         8. “Person” means a natural person, an organization, or other legal entity, including a corporation, partnership, sole proprietorship, limited liability company, association, cooperative, or any other group or combination acting as an entity.

         I.

         PROHIBITED REPRESENTATIONS: MITIGATION OF COGNITIVE DECLINE, MEMORY IMPROVEMENT, AND DISEASE CLAIMS

         IT IS HEREBY ORDERED that Defendant, Defendant's officers, agents, employees, and attorneys, and all other persons in active concert or participation with any of them, who receive actual notice of this Order, whether acting directly or indirectly, in connection with the manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of any Covered Product, are permanently restrained and enjoined from making, or assisting others in making, expressly or by implication, including ...


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