[Federal Register Volume 60, Number 107 (Monday, June 5, 1995)]
[Notices]
[Pages 29618-29620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13654]
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FEDERAL TRADE COMMISSION
[File No. 932 3040]
KGE, Inc.; Proposed Consent Agreement With Analysis To Aid Public
Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed consent agreement.
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SUMMARY: In settlement of alleged violations of federal law prohibiting
unfair acts and practices and unfair methods of competition, this
consent agreement, accepted subject to final Commission approval, would
require, among other things, a video dating service franchise to
properly and accurately disclose the annual percentage rate (APR) and
other credit terms of financed memberships, as required by the federal
Truth in Lending Act, and would require the franchise to make refunds
to consumers who were misled by the undisclosed finance charges and
APRs.
DATES: Comments must be received on or before August 4, 1995.
ADDRESSES: Comments should be directed to: FTC/Office of the Secretary,
Room 159, 6th St. and Pa. Ave., NW., Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT:
Stephen Cohen, FTC/S-4429, Washington, DC 20580. (202) 326-3222.
SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Section 2.34 of
the Commission's Rules of Practice (16 CFR 2.34), notice is hereby
given the following consent agreement containing a consent order to
cease and desist, having been filed with and accepted, subject to final
approval, by the Commission, has been placed on the public record for a
period of sixty (60) days. Public comment is invited. Such comments or
views will be considered by the Commission and will be available for
inspection and copying at its principal office in accordance with
Section 4.9(b)(6)(ii) of the Commission's Rules of Practice (16 CFR
4.9(b)(6)(ii)).
Agreement Containing Consent Order To Cease And Desist
In the matter of KGE, Inc., a corporation. File No. 932 3040.
The Federal Trade Commission having initiated an investigation of
certain acts and practices of KGE, Inc., a corporation, (hereinafter
referred to as proposed respondent) and it now appearing that proposed
respondent is willing to enter into an agreement containing an order to
cease and desist from the use of the acts and practices being
investigated.
It is hereby agreed by and between proposed respondent, its
attorneys, and counsel for the Federal Trade Commission that:
1. KGE, Inc., doing business as Great Expectations of Sausalito,
Great Expectations of Mountain View, and Great Expectations of Walnut
Creek (``GE-SFA''), is a corporation organized, existing, and doing
business under and by virtue of the laws of the state of California,
with its corporation office at 1943 Landings Dr., Mountain View, CA
94043, and its principal places of business located 2401 Marinship Way,
Suite 100, Sausalito, CA 94965, 2085 Landings Dr., Mountain View, CA
94043, and 1280 Civic Dr., Suite 300, Walnut Creek, CA 94596.
2. Proposed respondent admits all the jurisdictional facts set
forth in the draft of complaint.
3. Proposed respondent waives:
(a) Any further procedural steps;
(b) The requirement that the Commission's decision contain a
statement of finding of fact and conclusions of law; and
(c) Any right to seek judicial review or otherwise to challenge or
contest the validity of the order entered pursuant to this agreement.
4. This agreement shall not become a 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 of complaint contemplated thereby, will be placed on the public
record for a period of sixty (60) days and information in respect
thereto publicly released. The Commission thereafter may either
withdraw its acceptance of this agreement and so notify proposed
respondent, 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 respondent that the law has been
violated as alleged in the draft of complaint, or that the facts
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 Sec. 2.34 of the Commission's
Rules, the Commission may, without further notice to proposed
respondent, (1) issue its complaint corresponding in form and substance
with the draft of complaint and its decision containing the following
order to cease and desist in disposition of the proceeding, and (2)
make information public in respect thereto. When so entered, the order
to cease and desist 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 by the U.S. Postal Service of the complaint and
decision containing the agreed-to order to proposed respondent's
address as stated in this agreement shall constitute service. Proposed
respondent waives any right it may have to any other manner of service.
The complaint may be used in construing the terms of the order, and no
agreement, understanding, representation, or interpretation not
contained in the order or the agreement may be used to vary or
contradict the terms of the order.
7. Proposed respondent has read the proposed complaint and order
contemplated hereby. It understands that once the order has been
issued, it will be required to file one or more compliance reports
showing that it has fully complied with the order. Proposed respondent
further understands that it may be liable for civil penalties in the
amount provided by law for each violation of the order after it becomes
final.
Order
I
It Is Ordered that:
A. Respondent GE-SFA, its successors and assigns, and their
officers, agents, representatives, and employees, directly or through
any corporation, subsidiary, division, or other device, in connection
with the offering of credit, do forthwith cease and desist from failing
to accurately calculate and disclose the annual percentage rate, as
required by Sections 107(a) and (c) of the TILA, 15 U.S.C. 1606(a) and
(c), and Sections 226.18(e) and 226.22 of Regulation Z, 12 CFR
226.18(e) and 226.22;
B. Respondent GE-SFA, its successors and assigns, and its officers,
agents, representatives, and employees, directly or through any
corporation, subsidiary, division, or other device, in connection with
the offering of credit, do forthwith [[Page 29619]] cease and desist
from failing to accurately calculate and disclose the finance charge,
as required by Section 106 of the TILA, 15 U.S.C. 1605, and Sections
226.4 and 226.18(d) of Regulation Z, 12 CFR 226.4 and 226.18(d);
C. Respondent GE-SFA, its successors and assigns, and its officers,
agents, representatives, and employees, directly or through any
corporation, subsidiary, division, or other device, in connection with
the offering of credit, do forthwith cease and desist from failing to
make all disclosures in the manner, form, and amount required by
Sections 122 and 128(a) of the TILA, 15 U.S.C. 1632 and 1638(a), and
Sections 226.17 and 226.18 of Regulation Z, 12 CFR 226.17 and 226.18;
D. Respondent GE-SFA, its successors and assigns, and its officers,
agents, representatives, and employees, directly or through any
corporation, subsidiary, division, or other device, in connection with
the offering of credit, do forthwith cease and desist from failing to
comply with the TILA, 15 U.S.C. 1601 et seq., and Regulation Z, 12 CFR
part 226.
II
Refund Program
It Is Further Ordered that:
A. Within thirty (30) days following the date of service of this
order, respondent shall:
1. Determine to whom respondent disclosed on the original TILA
disclosure an annual percentage rate that was miscalculated by more
than one quarter of one percentage point below the annual percentage
rate determined in accordance with Section 226.22 of Regulation Z, 12
CFR 226.22, or that disclosed a finance charge that was miscalculated
by more than one dollar below the finance charge determined in
accordance with Section 226.4 of Regulation Z, 12 CFR 226.4, so that
each such person will not be required to pay a finance charge in excess
of the finance charge actually disclosed or the dollar equivalent of
the annual percentage rate actually disclosed, whichever is lower, plus
a tolerance of one quarter of one percentage point;
2. Calculate a lump sum refund and a monthly payment adjustment, if
applicable, in accordance with Section 108(e) of the TILA, 15 U.S.C.
1607(e);
3. Mail a refund check to each eligible consumer in the amount
determined above, along with Attachment 1; and
4. Provide the Federal Trade Commission with a list of each such
consumer, the amount of the refund, the number of payments refunded,
the amount of adjustment for future payments and the number of future
payments to be adjusted.
B. No later than fifteen (15) days following the date of service of
this order, respondent shall provide the Federal Trade Commission with
the name and address of three independent accounting firms, with which
it, its officers, employees, attorneys, agents, and franchisees have no
business relationship. Staff for the Division of Credit Practices of
the FTC shall then have the sole discretion to choose one of the firms
(``independent agent'') and so advise respondent;
C. Within thirty (30) days following the date of adjustments made
pursuant to this section, respondent shall direct the independent agent
to review a statistically-valid sample of refunds. Respondent shall
provide the Federal trade Commission with a certified letter from the
independent agent confirming that respondent has complied with Part
II.A. of this order;
D. All costs associated with the administration of the refund
program and payment of refunds shall be borne by the respondent.
III
It Is Further Ordered that respondent, its successors and assigns,
shall maintain for at least five (5) years from the date of service of
this order and, upon thirty (30) days advance written request, make
available to the Federal Trade Commission for inspection and copying
all documents and other records necessary to demonstrate fully its
compliance with this order.
IV
It Is Further Ordered that respondent, its successors and assigns,
shall distribute a copy of this order to any present or future officers
and managerial employees having responsibility with respect to the
subject matter of this order and that respondent, its successors and
assigns, shall secure from each such person a signed statement
acknowledging receipt of said order.
V
It Is Further Ordered that respondent, for a period of five (5)
years following the date of service of this order, shall promptly
notify the Commission at least thirty (30) days prior to any proposed
change in its corporate structure such as dissolution, assignment, or
sale resulting in the emergence of a successor corporation, the
creation or dissolution of subsidiaries or affiliates, or any other
change in the corporation that may affect compliance obligations
arising out of the order.
VI
It Is Further Ordered that respondent shall, within one hundred and
eighty (180) days of the date of service of this order, file with the
Commission a report, in writing, setting forth in detail the manner and
form in which it has complied with this order.
Attachment 1
Dear Great Expectations Customer:
As part of our settlement with the Federal Trade Commission for
alleged violations of the Truth in Lending Act, we are sending you the
enclosed refund check in the amount of $______. The refund represents
the amount you were overcharged as a result of errors made by Great
Expectations in calculating or disclosing the annual percentage rate or
finance charge.
[In addition, your future monthly payments have been reduced.
Starting immediately, your monthly payments will be $______.]
We regret any inconvenience this may have caused you.
Great Expectations
Analysis of Proposed Consent Order To Aid Public Comment
The Federal Trade Commission has accepted an agreement to a
proposed consent order from respondent KGE, Inc. (``GE-SFA'').
The proposed consent order has been placed on the public record for
sixty (60) days for reception of comments by interested persons.
Comments received during this period will become part of the public
record. After sixty (60) days, the Commission will again review the
agreement and the comments received and will decide whether it should
withdraw from the agreement or make final the agreement's proposed
order.
The complaint alleges that GE-SFA, as a creditor under the Truth in
Lending Act (``TILA''), has violated the TILA and its implementing
Regulation Z. Specifically, the TILA requires creditors to make clear
and consistent disclosures of the credit terms in a financed
transaction. GE-SEA failed to accurately calculate and disclose the
annual percentage rate (``APR'') and the finance charge, which resulted
in some consumers paying more in interest charges and finance charges
than the franchise disclosed. The complaint further alleges that this
practice is unfair or deceptive in violation of the Federal Trade
Commission Act.
Additionally, the complaint alleges that GE-SFA failed to
accurately [[Page 29620]] disclose the itemization of the amount
financed, which assists consumers in understanding whether they are
being charged a prepaid finance charge or whether any of the proceeds
are being distributed to third parties.
Finally, the complaint alleges that GE-SFA failed to identify the
creditor in each transaction.
The consent agreement would prohibit GE-SFA from failing to
accurately calculate and disclose the APR and any other terms required
by the TILA.
The consent agreement includes a refund program requiring GE-SFA to
make adjustments to the account of any consumer to whom it disclosed an
APR or finance charge that was lower than the amount the consumer
actually was required to pay.
The consent agreement would also require GE-SFA to maintain records
of its compliance with the consent agreement, distribute copies of the
agreement to its employees, and advise the Federal Trade Commission of
any changes in its corporate structure.
The purpose of this analysis is to facilitate public comment on the
proposed order, and it is not intended to constitute an official
interpretation of the agreement and proposed order or to modify in any
way their terms.
Donald S. Clark,
Secretary.
[FR Doc. 95-13654 Filed 6-2-95; 8:45 am]
BILLING CODE 6750-01-M
