SE vs Oregon
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Transcript of SE vs Oregon
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CIRCUIT COURT OF OREGON
MARION COUNTY
IN THE MATTER OF:
Hon. Claudia M. Burton
Case No. 09C188987
8ELICKO TAIEB, an individual.
ASSURANCE OF VOLUNTARY9 COMPLIANCE
10 1.
11 Elicko Taieb does business in Oregon and is respondent herein. This agreement is
12 between respondent and the Oregon Department of Justice (DOJ) acting pursuant to ORS
13 646.632.
14 PROCEDURE
15 2
16 This Assurance of Voluntary Compliance (AVC) is a settlement of a disputed matter. It
17 shall not be considered an admission of a violation for any purpose. Respondent and DOJ agree
18 that no provision of the AVC operates as a penalty, forfeiture, or punishment under the
19 Constitution of the United States, under the Constitution of the State of Oregon, or under any
20 other provision of law.
21 3.
22 Respondent waives receipt of a notice from the State of Oregon pursuant to ORS
23 646.632(2) of the alleged unlawful trade practice and the relief to be sought.
24 11/
25 III
26 III
Page 1 of 6-ASSURANCE OF VOLUNTARY COMPLIANCEDM-#2166380-2 Elicko Taieb (Smoking Everywhere, Inc.)
Department of JusticeISIS SW SID Ave .• Suite 410
Portland, OR 97201T: 971-673-1880F: 971-673-1884
1 4.
2 Respondent understands and agrees this AVC applies to respondent, respondent's
3 principals; officers, directors, agents, employees, representatives, successors and assigns, jointly
4 and severally, while acting personally, or through any corporation or other business entities,
5 whose acts, practices or policies are directed, formulated or controlled by respondent.
6 5.
7 Respondent and respondent's attorney agree and understand that following acceptance of
8 the AVC by DOJ, DOJ may communicate directly with respondent for the purpose of executing
9 and enforcing the terms of this agreement, resolving future complaints, and conducting
10 undercover investigations of respondent to the extent permitted by law.
11 6.
12 Respondent understands and agrees that if this AVC is accepted by DOJ, it will be
13 submitted to the Circuit Court of the State of Oregon for Marion County for approval, and, if
14 approved, will be filed with the court pursuant to ORS 646.632(2).
15 7.
16 Respondent waives any further notice of submission to and filing with the court of this
17 AVC. Respondent agrees to accept service of a conformed or court certified copy by prepaid
18 first class mail sent to the address following respondent's signature or to respondent's attorney.
19 8.
20 If monies which are ordered to be paid in this AVC are not paid timely, DOJ may
21 convert the AVC to a money judgment under ORS 646.632(2) without notice to respondents.
22 Respondents agree a copy of the money judgment may be sent to respondents, first class mail to
23 the addresses following their respective signatures.
24 9.
25 Respondent understands that, in addition to any other sanctions which may be imposed
26 under this AVC or under the law, violation of any of the terms of this AVC may result in
Page 2 of 6-ASSURANCE OF VOLUNTARY COMPLIANCEDM-#2166380-2 Elicko Taieb (Smoking Everywhere, Inc.)
Department of Justice1515 SW 511>Ave., Suite 410
Portland, OR 97201T: 971-673-1880F: 971-673-1884
1 contempt of court proceedings, civil penalties of up to $25,000 for each violation, and such
2 further relief as the court may deem appropriate. ORS 646.632(4), ORS 646.642(1) and ORS
3 646.642(2).
4 lQ
5 The parties acknowledge that no other promises, representations or agreements of any
6 nature have been made or entered into by the parties. The parties further acknowledge that this
7 AVC constitutes a single and entire agreement that is not severable or divisible, except that if
8 any provision herein is found to be legally insufficient or unenforceable, the remaining
9 . provisions shall continue in full force and effect.
10 11.
11 This AVC may be executed in counterparts, and by different signatories on separate
12 counterparts, each of which shall be deemed to constitute an original counterpart hereof, and all
13 of which shall together constitute one and the same AVc. One or more counterparts of this
14 AVC may be delivered by facsimile or electronic transmission with the intent that it or they
15 shall constitute an original counterpart hereof.
16 REMEDIES
17 12.
18 Respondent shall obey Oregon's Unlawful Trade Practices Act, ORS 646.605 to ORS
19 646.656.
20 13.
21 Respondent shall not represent or imply that DOJ acquiesces or approves of respondent's
22 past business practices, current efforts to reform its practices, or any future practices which
23 respondent may adopt or consider adopting. DOJ's decision to settle this matter or to otherwise
24 unilaterally limit current or future enforcement action does not constitute approval or imply
25 authorization for any past, present, or future business practice.
26 //I
Page 3 of 6-ASSURANCE OF VOLUNTARY COMPLIANCEDM-#2166380-2 Elicko Taieb (Smoking Everywhere, Inc.)
Department of Justice1515 SW 5'" Ave., Suite 410
Portland, OR 97201T: 971-<i73-1880F: 971-<i73-1884
1 14.
2 Upon execution of this AVC respondents shall pay the sum of $25,000 for deposit to the
3 Department of Justice Account established pursuant to ORS 180.095to be used by DO] as
4 provided by law.
5 15.
6 The following schedule shall apply to said payment: $6,250 shall be paid within 30 days
7 of the filing and entry of this AVC. Thereafter, respondent shall pay eight, consecutive
8 quarterly payments of $2,343.75 each, beginning with the first payment on December 5,2010.
9 Respondent shall make the quarterly payments on the following schedule:
10 Dec. 5, 2010: $2,343.75
Mar. 5,2011: $2,343.75
June 5,2011: $2,343.75
Sept. 5, 2011: $2,343.75
Dec. 5,2011: $2,343.75
Mar. 5,2012: $2,343.75
June 5,2012: $2,343.75
Sept. 5, 2012: $2,343.75
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14 There shall be no penalty for early payment.
15 16.
16 Effective immediately upon execution by respondent of this AVC, respondent agrees
17 that respondent, his principals, officers, directors, agents, employees, representatives, successors
18 and assigns, while acting personally, or through any corporations or other business entities,
19 whose acts, practices or policies are directed, formulated or controlled by respondent, shall be
20 permanently enjoined and restrained from engaging in any business in the state of Oregon that
21 relates to electronic cigarettes, tobacco products, nicotine delivery devices, drugs, or drug
22 delivery devices of any kind. For the purposes of this AVC, "engaging in any business" in
23 /II
24 III
25 III
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Page 4 of 6-ASSURANCE OF VOLUNTARY COMPLIANCEDM-#2166380-2 Elicko Taieb (Smoking Everywhere, Inc.)
Department of Justice1515 SW 5th Ave., Suite 410
Portland, OR 97201T: 971-673-1880F: 971-673-1884
1 Oregon shall mean advertising, marketing, promoting or offering for sale the specified goods, or
2 services related to those goods, in Oregon; delivering the specified goods, or services related to
3 those goods, into or from Oregon; and/or accepting payment for the specified goods, or services
4 related to those goods, from individuals or entities located in Oregon.
5 APPROVAL BY COURT
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APPROVED FOR FILING and SO ORDERED this _ day of , 2010.
8 Circuit Court Judge
9 REVIEW BY RESPONDENT'S ATTORNEY
10 Approved as to form.
11
12Dated: _
13
Dennis Koho,Koho & Beatty Attorneys at Law LLCAttorney for Respondent
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RESPONDENT'S SIGNATURE AND A NOWLEDGMENT
17 Individual
d each of its terms. RespondentRespondent has read and understands thisagrees to each and every term.
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Print Name
Address \D~(,I .91J{' {~l ~q\.~ E<-- ~>~Y22
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SUB~~~~~~~~~KEVIN L HAGEN
MY COMMISSION # DO 972097EXPIRES; Ju!y 16, 2014
Bonded Thru Notary Public Underwriters
otary Public for F
Page 5 of (rASSURANCE OF VOLUNTARY COMPLIANCEDM-#2166380-2 Elicko Taieb (Smoking Everywhere, Inc.)
Department ofJustice1515 SWS'" Ave., Suite4JO
Portland, OR 9720 JT: 971.Q73-J880F: 971.Q73-1884
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ACCEPTANCE OF DO.J
Accepted this _ day of , 2010.
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JOHN R. KROGERAttorney General
David Hart OSB 002750Senior Assistant Attorney GeneralOregon Degartment of Justice1515 SW 5 Ave, Suite 410Portland, OR 97201Tel.: (971) 673-1880 IIFax: (971) [email protected]
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Page 6 of 6-ASSURANCE OF VOLUNTARY COMPLIANCEDM-#2166380-2 Elicko Taieb (Smoking Everywhere. Inc.)
Department of JusticeISIS sw Sib Ave .• Suite 410
Portland, OR 9720 IT: 971.{)73-1880F: 971'{)73-1884
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IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MARION
Plaintiff, Hon. Claudia Burton
STATE OF OREGON ex rel. JOHNKROGER, Attorney General of Oregon,
Case No. 09CI8898
v. STIPULATED GENERAL JUDGMENT andMONEY AWARD
8 SMOKING EVERYWHERE, INC.,
9 Defendant.
10 Plaintiff, State of Oregon, acting by and through John R. Kroger, Attorney General of
11 Oregon ("DOJ") brought this action pursuant to ORS 646.632 against Defendant Smoking
12 Everywhere, Inc. (''Defendant''). The parties now consent to the entry of this Stipulated General
13 Judgment ("Judgment"). This Judgment disposes of all claims against Defendant in the above
14 captioned matter. NOW THEREFORE, upon the consent of the parties hereto IT IS HEREBY
15 ORDERED, ADJUDGED and DECREED as follows:
16 I. FINDINGS
17 1.
18 This Court has jurisdiction over the subject matter of this lawsuit and over all parties.
19 2
20 The terms of this Judgment shall be governed by the laws of the State of Oregon.
21 3.
22 Entry of this Judgment is in the public interest.
23 4.
24 Defendant is a Florida corporation.
25 5.
26 Defendant did business in Oregon by selling and distributing electronic cigarettes.
Page 1 - STIPULATED GENERAL JUDGMENT and MONEY AWARDDM#2166934-3 State v. Smoking Everywhere, Inc.
Department of Justice1515 SW 5111 Ave., Suite 410
Portland, OR 97201T: 971-673-1880 IIF: 971-673-1884
1 6.
2 Electronic cigarettes are nicotine delivery devices constructed to mimic the look and
3 experience of smoking a conventional cigarette. Defendant's electronic cigarettes contain a
4 battery-operated, heating element and a replaceable plastic cartridge that contains various
5 chemicals, including liquid nicotine. The heating element vaporizes the liquid, which is inhaled
6 by the user.
7 7.
8 When selling and promoting electronic cigarettes in Oregon, Defendant violated ORS
9 646.608 (l)(e).
10 II. ADMINISTRATIVE PROVISIONS
11 8.
12 Defendant understands and agrees that the terms and conditions of this Judgment apply to
13 Defendant, its principals, officers, directors, agents, employees, representatives, successors and
14 assigns, while acting personally, or through any corporations or other business entities, whose
15 acts, practices or policies are directed, formulated or controlled by Defendant.
16 9.
17 Defendant agrees and understands that following the filing and entry of this Judgment
18 with the court, DOJ may communicate directly with Defendant for the purpose of executing and
19 enforcing the terms of this Judgment, resolving future complaints and conducting undercover
20 investigations to the extent permitted by law of the Defendant.
21 10.
22 Defendant understands that, if it violates the terms or conditions of any portion of this
23 Judgment, DOJ may institute appropriate legal action to enforce said Judgment, including, but
24 not limited to, contempt proceedings before the Court, civil or punitive penalties, and such
25 further relief as the Court may deem appropriate.
26 III
Page 2 - STIPULATED GENERAL JUDGMENT and MONEY AWARDDM#2166934-3 State v. Snwking Everywhere. Inc.
Department of Justice1515 SW5tb Ave., Suite 410
Portland, OR 97201T: 971-673-1880" F: 971-673-1884
1 11.
2 Defendant and DOJ acknowledge that no other promises, representations or agreements
3 of any nature have been made or entered into by the parties. The parties further acknowledge
4 that this Judgment constitutes a single and entire agreement that is not severable or divisible,
5 except that if any provision herein is found to be legally insufficient or unenforceable, the
6 remaining provisions shall continue in full force and effect.
7 12.
8 This Stipulated General Judgment resolves all claims brought by Plaintiff in Marion
9 County Case No. 09C18898.
10 13.
11 Defendant shall not represent or imply that DOJ acquiesces or approves of Defendant's:
12 past business practices; current efforts to reform their practices; or, any future practices that
13 Defendant may adopt or consider adopting. DOl's decision to settle this matter or to otherwise
14 unilaterally limit current or future enforcement action does not constitute approval or imply
15 authorization for any past, present, or future business practices of the Defendant.
16 14.
17 This Judgment may be executed in counterparts, and by different signatories on separate
18 counterparts, each of which shall be deemed to constitute an original counterpart hereof, and all
19 of which shall together constitute one and the same Judgment. One or more counterparts of this
20 Judgment may be delivered by facsimile or electronic transmission with the intent that it or they
21 shall constitute an original counterpart hereof.
22 III. INJUNCTION
23 15.
24 On DOl's claims for relief under Oregon's Unlawful Trade Practices Act, ORS 646.605
25 through 646.656, JUDGMENT in the form of PERMANENT INJUNCTIVE RELIEF is awarded as
26 follows:
Page 3 - STIPULATED GENERAL JUDGMENT and MONEY AWARDDM#2166934-3 State v. Smoking Everywhere. Inc.
Department of Justice1515 SW 5th Ave., Suite4to
Portland, OR 97201T: 971-673-1880 IIF: 971-673-1884
1 Defendant, its principals, officers, directors, agents, employees, representatives,
2 successors and assigns, while acting personally, or through any corporations or other business
3 entities, whose acts, practices or policies are directed, formulated or controlled by Defendant,
4 shall be permanently enjoined and restrained from engaging in any business in the state of
5 Oregon. For the purposes of this Judgment, "engaging in any business" in Oregon shall mean
6 promoting products for sale in Oregon, delivering goods or services into Oregon or from Oregon,
7 and/or accepting payment from individuals or entities located in Oregon.
8 IV. MONEY A WARD
9 1~
10 JUDGMENT, in the form of a MONEY AWARD as described by the Money Award
11 Summary set forth below, shall be entered for DOJ and against Defendant. Defendant shall pay
12 DOJ's attorney fees and costs for this litigation in the amount of $95,862.07, which shall be
13 deposited to the Protection and Education Revolving Account established pursuant to ORS
14 180.095 to be used by DOJ as provided by law.
15 17.
16 The following schedule shall apply to said payment: $24,000.07 shall be paid within 30
17 days of the filing and entry of this judgment. Thereafter, Defendant shall pay eight, consecutive
18 quarterly payments of $8,982.75 each, beginning with the first payment on December 5, 2010.
19 Defendant shall make the quarterly payments on the following schedule:
20 Dec. 5,2010: $8,982.75
Mar. 5,2011: $8,982.75
June 5,2011: $8,982.75
Sept. 5, 2011: $8,982.75
Dec. 5,2011: $8,982.75
Mar. 5, 2012: $8,982.75
June 5,2012: $8,982.75
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23 Sept. 5, 2012: $8,982.75
24 There shall be no penalty for early payment.
25 1//
26 1//
Page4 - STIPULATED GENERAL JUDGMENT and MONEY AWARDDM#2166934-3 State v. Smoking Everywhere, Inc.
Department of Justice1515 SW 5th Ave., Suite 410
Portland. OR 97201T: 971-673-1880 IIF: 97H573-1884
1 18.
2 So long as Defendant makes all payments timely pursuant to this schedule, no interest
3 shall accrue. However, if Defendant fails to make any payment timely, the entire outstanding
4 balance shall become immediately due in full and interest shall begin to accrue from the date of
5 the late payment at a rate of 9% per annum.
6 19.
7 MONEY AWARD SUMMARY
8 A. Judgment Creditor: State of Oregon, ex reI. John Kroger, Attorney General of Oregon.
9 a. Address of Judgment Creditor: 1162Court Street, NE, Salem, OR 97301-4096.
10 b. Judgment Creditor's Attorney: David Hart, OSB 002750, Senior Assistant
11 Attorney General.
12 c. Address of Judgment Creditor's Attorney: Oregon Department of Justice,
13 1515SW 5th Avenue, Suite 410, Portland, OR 97201. Telephone: (971) 673-
14 1880. Fax: (971) 673-1884. Email: [email protected].
15 B. Judgment Debtor: SMOKING EVERYWHERE, INe.
16 a. Address of Judgment Debtor: 1500Weston Rd., Suite 200, Weston, FL 33326
17 b. Date of Birth: NIA
18 c. TaxID#: _
19 d. Driver's License No.1 State ofIssuance: NIA
20 e. Judgment Debtor's Attorney: Dennis Koho (OR) I Kevin Hagen (FL)
21 f. Address of Judgment Debtor's Attorney:
22 i. Dennis Koho, Koho & Beatty Attorneys at Law LLC,
23 132Glynbrook St. N, Suite 350, Keizer, OR 97303.
24 TeL (503) 390-3501. Fax. (503) 390-3506.
25 Email: [email protected]
26 III
Page5 - STIPULATED GENERAL JUDGMENT and MONEY AWARDDM#2166934-3 State v. Smoking Everywhere. Inc.
Department of Justice1515 SW SibAve., Suite 410
Portland, OR 97201T: 971-673-1880 IIF: 971-673-1884
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Page 6-
11. Kevin Hagen, Hagen & Hagen, PA,
3531 Griffm Rd., Fort Lauderdale, FL 33312.
Tel. (954) 987-0515. Fax. (954) 964-3764
Email: [email protected]
C. Other person(s) or public body entitled to a portion of payment: None.
D. Principal Amount of Judgment: None. The parties have stipulated that Defendant
shall pay DOl's attorney fees and costs in the amount of $95,862.07, as described below.
E. Pre-judgment Interest:
F. Post-judgment Interest:
None.
As long as Defendant makes all payments timely pursuant
to this schedule, no interest shall accrue. However, if Defendant fails to make any
payment timely, the entire outstanding balance shall become immediately due in full and
interest shall begin to accrue from the date of the late payment at a rate of 9% per annum.
G. Other Costs, Disbursements, Periodic Payments, Arrearages: None.
STIPULATED GENERAL JUDGMENT and MONEY AWARDDM#2166934-3 State v. Snwking Everywhere. Inc.
Department of Justice1515 SW 5th Ave .. Suite 410
Portland. OR 97201T: 971-673-1880 IIF: 971-673-1884
1 H. Attorneys' Fees and Associated Costs: The parties have stipulated that Defendant shall
2 pay DOJ's attorney fees and costs in the amount of $95,862.07, which shall be deposited
3 to the Protection and Education Revolving Account established pursuant to ORS 180.095
4 to be used by DOJ as provided by law. The following schedule shall apply to said
5 payment: $24,000.07 shall be paid within 30 days of the filing and entry of this judgment.
6 Thereafter, Defendant shall pay eight, consecutive quarterly payments of $8,982.75 each,
7 beginning with the first payment on December 5,2010. Defendant shall make the
8 quarterly payments on the following schedule:
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131415161718192021222324252627282930313233343536373839
Dec. 5,2010: $8,982.75
Mar. 5,2011: $8,982.75
June 5,2011: $8,982.75
Sept. 5, 2011: $8,982.75
Dec. 5,2011: $8,982.75
Mar. 5,2012: $8,982.75
June 5,2012: $8,982.75
Sept. 5, 2012: $8,982.75
There shall be no penalty for early payment.
DATED: , 2010.
Submitted by:David Hart OSB 002750Senior Assistant Attorney GeneralOregon Department of Justice1515 SW 5th Ave, Suite 410, Portland, OR 97201Tel.: (971) 673-1880 II Fax: (971) [email protected] for Plaintiff
Hon. Claudia BurtonMarion County Circuit Court Judge
UTCR 5.100 CERTIFCATION: Opposing counsel stipulates that no objection exists as to the form ofthe order:
Signed: Dated: _Dennis Koho, OSB 043310Koho & Beatty, Attorneys At Law, PC132 Glynbrook N, Suite 350, Keizer, OR 97303Tel.: 503-390-3501 IIFax 503-390-3506Email: [email protected] for Defendant
Page 7 - STIPULATED GENERAL JUDGMENT and MONEY AWARDDM#2166934-3 State v. Smoking Everywhere. Inc.
Department of Justice1515 SW Sib Ave .• Suite 410
Portland, OR 97201T: 971-673-1880 IIF: 971-673-1884
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IT IS SO STIPULATED:
DEFENDANT'S SIGNATURE
I, 6_·~_\ -"J?-'---o_.....:\~"'_\ -=--c,..c:h,-----" being first duly sworn on oath depose and say that I am
of Smoking Everywhere, In ., and am fully authorized and
7 empowered to sign this Stipulated General Judgment and oney Award and bind the same to the
terms hereof. I have read and understand this agr ement
behalf, I agree to each and every term.
SUBSCRIBED AND SWORN to before me this -+ day of__ ~~~ __ , 2010.
Page 8 - STIPULATED GENERAL JUDGMENT and MONEY AWARDDM#2166934-3 State v. Smoking Everywhere, Inc.
Department of Justice1515 SW 5111 Ave., Suite 410
Portland, OR 97201T: 971'{)73-1880 IIF: 971'{)73-1884
123456789
101112131415161718
DOJ's ACCEPTANCE
DATED: , 2010.
JOHN R. KROGERAttorney General
David Hart OSB 002750Senior Assistant Attorney GeneralOf Attorneys for PlaintiffOregon Department of Justice1515 SW 5th Ave., Suite 410Portland, OR 97201david. hart @doj.state.or.usTel: 971-673-1880 I Fax: 971-673-1884
Page 9 - STIPULATED GENERAL JUDGMENT and MONEY AWARDDM#2166934-3 State v. Smoking Everywhere, Inc.
Department of JusticeISIS SW 5"' Ave., Suite 410
Portland, OR 97201T: 971-673-1880 II F: 971-673-1884
CERTIFICA TE OF SERVICE
I hereby certify that on the date below, I served true copies of the foregoingSTIPULATED GENERAL JUDGMENT and MONEY AWARD on the persons identifiedbelow byemail and US Mail, frrst-class postage prepaid to:
Dennis KohoKoho & Beatty, Attorneys at Law LLC132 Glynbrook St. N, Suite 350Keizer, OR 97303Email: [email protected]
Kevin HagenHagen & Hagen, PA3531 Griffm Rd.Fort Lauderdale, FL 33312Email: [email protected]
Attorneys for Defendant Smoking Everywhere, Inc.
DATED: , 2010.
David HartSenior Assistant Attorney General
Page 10 - STIPULATED GENERAL JUDGMENT and MONEY AWARDDM#2166934-3 State v. Smoking Everywhere, Inc.
Department of Justice1515 SW 5th Ave .. Suite 410
Portland, OR 97201T: 971-673-1880 IIF: 971-673-1884