Antitrust Lawyer Blog Commentary on Current Developments

Magazine Seller Will Pay More Than $7 Million

On September 11, 2006, a federal judge ordered a magazine subscription seller to pay a civil penalty of more than $5.4 million and give up more than $1.6 million of his ill-gotten gains for violating a 1996 Federal Trade Commission (“FTC”) consent order and the FTC’s Telemarketing Sales Rule (“TSR”). This amount is the largest civil penalty the FTC ever obtained for a violation of a consent order in a consumer protection matter.
Based on an FTC complaint filed by the U.S. Department of Justice, the court entered a judgment against Richard L. Prochnow of Atlanta. The court found that Prochnow violated the consent order through his ownership and control of Direct Sales International (“DSI”), which either directly or through its dealers: (1) failed to disclose or misled consumers regarding the cost of magazine packages and individual magazines; and, (2) made weekly cost representations even though consumers could not make weekly payments for the magazine packages.

The court also held Prochnow liable for DSI’s failure to tell consumers that their credit cards would be billed for membership in a buying club unless they called within thirty days to cancel, and its failure to provide consumers with information that would enable them to cancel, in violation of the TSR. The court further found Prochnow liable for false statements to consumers that publishers were paid in advance for magazines, which the Court found to be a violation of the TSR.

The court ordered that, with a few narrow exceptions, Prochnow may not own, control, manage, advise or assist others engaged in a telemarketing business for five years. This ban does not apply to his ownership in Amerinet, a company that processes payments to telemarketers, and Hotdogger, an infomercial company, provided he does not exercise any control over the companies and places his interest in them in the custody and control of an independent third party approved by the court. During the next five years, he must provide the FTC with quarterly reports on his business dealings, and provide copies of the order to heads of non-publicly traded companies in which he has ownership.

In holding Prochnow personally liable for the violations, the court found that he had the authority to control the practices of DSI’s employees and those of the dealers selling magazine subscriptions pursuant to contracts with DSI. The violations of the consent order and the TSR occurred between April 1997 and January 2000, when Prochnow sold DSI. The consent order, which prohibited Prochnow from using deceptive practices to sell magazine subscriptions, settled FTC charges against Prochnow, then doing business as DSI, and several other corporate and individual parties.

The court entered the judgment on July 31, 2006. The case was litigated in the U.S. District Court for the Northern District of Georgia, Atlanta Division.

Authored by

Andre Barlow
202-589-1838
abarlow@dbmlawgroup.com