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Home My WebLink About05-4839 COMMONWEALTH OF PENNSYLVANIA BY ATTORNEY GENERAL THOMAS W. CORBETT, JR., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plain tiff v. CIVIL ACTION - EQUITY OS - 1.{jfJf CiUll ~~ AMERICAN MINT LLC d/b/a AMERICAN MINT 5020 LOUISE DRIVE, SUITE 300 MECHANICSBURG, PA 17055 Defendant ASSURANCE OF VOLUNTARY COMPLIANCE WHEREAS, the Commonwealth of Pennsylvania, acting by the Office of Attorney General, through the Bureau of Consumer Protection ("Commonwealth"), has caused an investigation to be made into the business practices of American Mint LLC ("Respondent"), pursuant to the Unfair Trade Practices and Consumer Protection Law, 73 P.S. 99201-1-201-9.3 ("Consumer Protection Law"); An Act in relation to Unsolicited Merchandise, 73 P.S. 92001; An Act pertaining to the Mailing of Unordered Merchandise, 39 U.S.C.A. 93009; the Federal Trade Commission's Trade Regulation Rule Concerning Mail or Telephone Order Merchandise, 16 C,F.R. 9435,1 (hereinafter "Mail Order Rule"); the Federal Trade Commission Rule Concerning Prenotification Negative Option Plans, 16 C.F.R. 9425.1; and the Federal Truth in Lending Regulation Z, 12 C.F.R. 9226.13; and WHEREAS, the Respondent is a Pennsylvania Limited Liability Company engaged in trade or commerce within the Commonwealth through the sale of commemorative coins, memorabilia and collectibles and doing business as American Mint. The Respondent's principal place of business is located at 5020 Louise Drive, Suite 300, Mechanicsburg, Cumberland County, Pennsylvania 17055; and WHEREAS, based upon its investigation, the Commonwealth alleges that Respondent engaged in conduct violative of the Unfair Trade Practices and Consumer Protection Law, 73 P.S. 1313201-1-201-9,3 ("Consumer Protection Law"); An Act in relation to Unsolicited Merchandise, 73 P,S, 132001; An Act pertaining to the Mailing of Unordered Merchandise, 39 U.S,C.A. 133009; the Federal Trade Commission Mail Order Rule, 16 C.F.R. 13435.1; the Federal Trade Commission Rule Concerning Prenotification Negative Option Plans, 16 C.F.R. 13425.1; and the Federal Truth in Lending Regulation Z, 12 C.F.R. 13226.13; and WHEREAS, the Commonwealth alleges that the Respondent repeatedly sent unordered merchandise to individual consumers who neither solicited nor requested that such merchandise be sent to them; and WHEREAS, Respondent also allegedly billed consumers for not only the merchandise itself but also shipping and handling charges for unordered merchandise and expected consumers to pay for these charges; and WHEREAS, Respondent allegedly sent consumers notices that threatened a referral of consumers' accounts to a collection agency if the amounts requested by Respondent were not paid to Respondent; and - 2 - WHEREAS, the Commonwealth alleges that this conduct violates 73 P.S. !j201-2(4)(v) and (xxi); 73 P.S. !j2001; 39 U,S.C.A. !j3009; both of which treat this type of merchandise as a gift, and 16 C.F.R. !j425.1, which makes it an unfair or deceptive act or practice for a seller in connection with the use of any negative option plan to fail to clearly and conspicuously disclose the material terms of the plan; and WHEREAS, the Respondent also continued to bill consumers for the items, as well as apply late fees to these consumers' accounts for allegedly overdue payments, the consumers asserted that they had retumed; and WHEREAS, on numerous occasions consumers paid for merchandise that was either never received or retumed but not refunded; and WHEREAS, the Commonwealth alleges that this conduct violates 73 P.S. !j201-2(4)(v) and (xxi) and 16 C.F.R. !j425.1; and WHEREAS, numerous consumers allege unauthorized charges to their credit cards in violation of 12 C.F.R !j226.13; and WHEREAS, Respondent has agreed to cease and desist from the aforementioned conduct, and desires to comply with these civil laws of the Commonwealth; and WHEREAS, Respondent asserts that it has complied with all applicable state and federal consumer protection laws but nevertheless has instituted procedural changes to insure the accuracy of billing information and the crediting to consumers' accounts of merchandise lost in the mail or otherwise not received by the consumer and; - 3 - WHEREAS, the Respondent now seeks to operate its business as a continuity plan, as that terms is defined by the Federal Trade Commission; and WHEREAS, the Commonwealth is agreeable in this matter to accept this Assurance of Voluntary Compliance, pursuant to !j20 1-5 of the Consumer Protection Law, in lieu of commencing proceedings pursuant to !j20 1-4 of the Consumer Protection Law; and WHEREAS, under the Consumer Protection Law, this Assurance of Voluntary Compliance shall not be considered an admission of a violation for any purpose. NOW THEREFORE, while engaging in trade or commerce within the Commonwealth of Pennsylvania, Respondent agrees for itself, its officers, partners, representatives, employees and all other persons acting on its behalf, jointly or individually, directly or through any corporate or business device, as follows: 1. Respondent shall comply with any and all provisions of the Pennsylvania Consumer Protection Law; 73 P.S. ~!j201-1-201-9.3; 73 P.S. !j2001; 39 U.S.C.A. !j3009; the Federal Trade Commission Mail Order Rule, 16 C,F.R. !j435.1; and the Federal Trade Commission Guidance concerning Continuity Plans; and the Federal Truth in Lending Regulation Z, 12 C.F.R. !j226.13; and is permanently enjoined from any violation thereof. n. Upon signing this Assurance of Voluntary Compliance, Respondent agrees it shall respond in writing to any written complaint filed with the Office - 4 - h/A51~e~~ of Attorney General, Bureau of Consumer Protection, within twenty (20) days of II receiving notice thereof. III. The Respondent agrees to provide restitution, to any consumers not previously provided full restitution, including those who previously filed consumer complaints through this Office which were mediated, in the following forms, as appropriate: 1) a full refund to consumers who either paid for unsolicited merchandise and/ or shipping and handling to retum the same; and/or 2) provide pursuant to consumer election either an opportunity to cancel their order and receive a refund or be provided the merchandise they previously placed pre-paid orders for in the event that consumers did not receive this merchandise in accordance with the time clearly and conspicuously stated in the Respondent's solicitation or within 30 days after the order was placed. Additionally, the Respondent further agrees to provide restitution, in the form described above to any additional consumers who file a complaint with the Commonwealth within sixty (60) days of the signing of this Assurance of Voluntary Compliance pertaining to either the consumer's payment of monies to Respondent for unordered merchandise or not receiving pre-paid orders in accordance with the time clearly and conspicuously stated in the Respondent's solicitation or within 30 days after the order was placed. The Respondent agrees to make this restitution upon the consumer's demand, provided that the complaint is substantiated, subject to the parties' verification of the claim, which the Respondent agrees to not unreasonably withhold. - 5 - IV. Upon signing this Assurance, the Respondent shall pay Twenty Thousand Dollars ($20,000.00) to the Commonwealth as costs of investigation and/or future public protection purposes. V. Upon signing this Assurance, the Respondent shall also pay Five Thousand Dollars ($5,000.00) to the Commonwealth as civil penalties. VI. This Court shall maintain jurisdiction over the subject matter of this Assurance of Voluntary Compliance and over Respondent for the purpose of enforcing this Assurance, VII. Provided that nothing contained herein shall be construed to waive any individual right of action by a consumer or a local, state, federal, or other governmental entity. NOW THEREFORE, the parties hereby stipulate that this Assurance of Voluntary Compliance shall have the same force and effect as a permanent injunction issued under ~201-4 of the Consumer Protection Law, so that any violation of this Assurance of Voluntary Compliance shall be sufficient cause for the Attomey General of this Commonwealth to seek penalties as provided in ~~201-8, 201-9 and 201-9.1 of the Consumer Protection Law and any other equitable relief which the Court deems necessary or proper. - 6 - Witness this ~ay of FOR THE PLAINTIFF: ,2005. THOMAS W. CORBETI. JR. THOMAS W. CORBETI, JR. ATIORNEY GENERAL FRANK T. DONAGHUE FRANK T. DONAGHUE CHIEF DEPUTI ATIORNEY GENERAL DE, PRESIDENT AMERICAN INT LLC 5020 LOU E DRIVE, SUITE 300 MECHAN CSBURG, PA 17055 ~i~ KA RYN H. SILCOX DEPUTI ATIORNEY GENERAL ATIORNEY LD. No. 81735 J DI L. ZUCCO D PUTI ATIORNEY GENERAL ORNEY LD. No. 58131 OFFICE OF ATIORNEY GENERAL BUREAU OF CONSUMER PROTECTION HARRISBURG REGIONAL OFFICE 301 CHESTNUT STREET, SUITE 105 HARRISBURG, PA 17101 TELEPHONE: (717) 787-7109 FAX: (717) 772-3560 - 7 - -,:J \L - f\ "'0 ...::l lI\ --c: o ~ - vJ ~ -c:. -IA. Ul ~ tI\. '0 -J t'- E -.-:r- CJ c; "~'" ''''''''.,-":.' 0}\'\~ ,,- -'~-'- ";'" ,",-'-' c~C) ,~-:.(': .,~. ~:.'- )." C;;. / .._i ~"- ~ ~:!l ~ _ 1)~ 'b a..:: CI' ~;{. .." ".,23:) --::-".'.: '-/--<<;A _ "',~i'. , l~ (.:. U't ~ 0' ~ ~ if> \~i'"\ -0