Stipulated Order for Permanent Injunction — FTC v. Womply

Record facts

Federal Trade Commission · No. 3:24-cv-01661-WHO · Doc. 10 · 2024-04-03 · Docket on CourtListener

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STIPULATED ORDER 
 
JULIA HEALD, NY Bar No. 5437561 
KATHERINE WORTHMAN, DC Bar No. 488800 
PAOLA HENRY, NY Bar No. 5612890 
Federal Trade Commission 
600 Pennsylvania Avenue, NW 
Mailstop CC-10232 
Washington, D.C. 20580 
Phone:  (202) 326-3589 (Heald) 
Email:  jheald@ftc.gov; kworthman@ftc.gov; phenry@ftc.gov 
Attorneys for Plaintiff 
FEDERAL TRADE COMMISSION 
 
Counsel for Defendants listed on signature pages 
 
UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA 
San Francisco Division 
 
 
FEDERAL TRADE COMMISSION, 
 
 
Plaintiff, 
 
 
v. 
 
OTO ANALYTICS, INC., also d/b/a WOMPLY, 
a corporation, and 
 
TOBY SCAMMELL, individually and as an 
officer of OTO ANALYTICS, INC., 
 
 
Defendants. 
 
 
 
 
Case No. 24-CV-1661 
 
STIPULATED ORDER FOR 
PERMANENT INJUNCTION AND 
MONETARY JUDGMENT  
 
 
 
 
 
 
 
 
Plaintiff, the Federal Trade Commission (“Commission” or “FTC”), filed its Complaint 
for Permanent Injunction and Monetary Relief  (“Complaint”), for a permanent injunction, and 
monetary relief,  in this matter, pursuant to Sections 13(b) and 19 of the Federal Trade 
Commission Act (“FTC Act”), 15 U.S.C. §§ 53(b) and 57b, and the COVID-19 Consumer 
Protection Act, Public Law 116-260, 134 Stat. 1182, Title XIV, Section 1401.  Defendants have 
waived service of the summons and the Complaint.  Plaintiff and Defendants stipulate to the 
Case 3:24-cv-01661-WHO   Document 10   Filed 04/03/24   Page 1 of 13

 
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STIPULATED ORDER 
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entry of this Stipulated Order for Permanent Injunction, and Monetary Judgment  (“Order”) to 
resolve all matters in dispute in this action between them. 
THEREFORE, IT IS ORDERED as follows: 
FINDINGS 
1. 
This Court has jurisdiction over this matter. 
2. 
The Complaint charges that Defendants participated in deceptive acts or practices 
in violation of Section 5 of the FTC Act, 15 U.S.C. § 45, and the COVID-19 Consumer 
Protection Act, Public Law 116-260, 134 Stat. 1182, Title XIV, Section 1401 in connection with 
the advertising, marketing, and provision of Paycheck Protection Program financing services to 
small business consumers.  
3. 
Defendants neither admit nor deny any of the allegations in the Complaint, except 
as specifically stated in this Order.  Only for purposes of this action, Defendants admit the facts 
necessary to establish jurisdiction.   
4. 
Defendants waive any claim that they 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 agree to bear their own costs and attorney fees. 
5. 
Defendants and the Plaintiff 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: 
 
A. 
“Defendants” means the Individual Defendant and the Corporate Defendant, 
individually, collectively, or in any combination. 
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STIPULATED ORDER 
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1. 
“Corporate Defendant” means Oto Analytics, Inc., also doing business 
as Womply, and its successors and assigns. 
2. 
“Individual Defendant” means Toby Scammell.  
B. 
“Competent and Reliable Evidence” means tests, analyses, research, studies, or 
other evidence, that (1) have been conducted or collected and evaluated in an objective manner 
by qualified persons and (2) are generally accepted by professionals with expertise in the 
relevant area to yield accurate and reliable results. 
ORDER 
I. 
PROHIBITION AGAINST DECEPTIVE CLAIMS, 
INCLUDING FALSE AND/OR UNSUBSTANTIATED 
CLAIMS 
IT IS ORDERED that Defendants, Defendants’ officers, agents, employees, 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 advertising, marketing, 
promoting, distributing, servicing, or offering any financial product or service are permanently 
restrained and enjoined from:  
 misrepresenting, or assisting others in misrepresenting, expressly or by 
implication:  
1. That consumers will receive any product or service, or consumers’ odds or 
likelihood of receiving any product or service; 
2. The amount of time Defendants have taken, will take, or will likely take to 
provide any material aspect of a product or service, including processing 
an application or applications; or 
3. Any material fact about such product or service. 
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STIPULATED ORDER 
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 making any representation, or assisting others in making any representation, 
expressly or by implication, about the claims set forth in I.A, unless the 
representation is non-misleading, and, at the time such representation is made, 
Defendants possess and rely upon Competent and Reliable Evidence that 
substantiates that the representation is true.  
II. 
JUDGMENT FOR MONETARY RELIEF  
IT IS FURTHER ORDERED that:  
A. 
Judgment in the amount of Twenty-Six Million Dollars ($26,000,000) is entered 
in favor of the Plaintiff against Defendants, jointly and severally, as monetary relief. 
B. 
Defendants are ordered to pay to Plaintiff, by making payment to the 
Commission, Twenty-Six Million Dollars ($26,000,000), which, as Defendants stipulate, their 
undersigned counsel will hold in escrow within 10 days of Defendants’ signatures for no purpose 
other than payment to Plaintiff.  Such payment must be made within 7 days of entry of this Order 
by electronic fund transfer in accordance with instructions previously provided by a 
representative of Plaintiff. 
III.  
ADDITIONAL MONETARY PROVISIONS 
IT IS FURTHER ORDERED that:  
 
Defendants relinquish dominion and all legal and equitable right, title, and interest 
in all assets transferred pursuant to this Order and may not seek the return of any assets. 
 
The facts alleged in the Complaint will be taken as true, without further proof, in 
any subsequent civil litigation by or on behalf of the Commission, including in a proceeding to 
enforce its rights to any payment or monetary judgment pursuant to this Order, such as a 
nondischargeability complaint in any bankruptcy case. 
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STIPULATED ORDER 
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The facts alleged in the Complaint establish all elements necessary to sustain an 
action by the Commission pursuant to Section 523(a)(2)(A) of the Bankruptcy Code, 11 U.S.C. § 
523(a)(2)(A), and this Order will have collateral estoppel effect for such purposes.  
 
Defendants acknowledge that their Taxpayer Identification Numbers (Social 
Security Numbers or Employer Identification Numbers), which Defendants must submit to the 
Commission, may be used for collecting and reporting on any delinquent amount arising out of 
this Order, in accordance with 31 U.S.C. §7701. 
 
All money received by the Commission as monetary relief pursuant to this Order 
may be deposited into a fund administered by the Commission or its designee to be used for 
consumer relief, such as redress and any attendant expenses for the administration of any redress 
fund.  If a representative of the Commission decides that direct redress to consumers is wholly or 
partially impracticable or money remains after such redress is completed, the Commission may 
apply any remaining money for such related relief (including consumer information remedies) as 
it determines to be reasonably related to Defendants’ practices alleged in the Complaint.  Any 
money not used for relief is to be deposited to the U.S. Treasury.  Defendants have no right to 
challenge any actions the Commission or its representatives may take pursuant to this 
Subsection. 
IV.  CUSTOMER INFORMATION 
IT IS FURTHER ORDERED that Defendants, Defendants’ officers, agents, employees, 
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, are permanently restrained and 
enjoined from directly or indirectly failing to provide sufficient customer information to enable 
the Commission to efficiently administer consumer redress.  If a representative of the 
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STIPULATED ORDER 
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Commission requests in writing any information related to redress, Defendants must provide it, 
in the form prescribed by the Commission, within 14 days. 
V.   ORDER ACKNOWLEDGMENTS 
IT IS FURTHER ORDERED that Defendants obtain acknowledgments of receipt of this 
Order: 
 
Each Defendant, within 7 days of entry of this Order, must submit to the 
Commission an acknowledgment of receipt of this Order sworn under penalty of perjury. 
 
For 10 years after entry of this Order, each Individual Defendant for any business 
that such Defendant, individually or collectively with any other Defendants, is the majority 
owner or controls directly or indirectly, and each Corporate Defendant, must deliver a copy of 
this Order to:  (1) all principals, officers, directors, and LLC managers and members; (2) all 
employees having managerial responsibilities for conduct related to the subject matter of the 
Order and all agents and representatives who participate in conduct related to the subject matter 
of the Order; and (3) any business entity resulting from any change in structure as set forth in the 
Section titled Compliance Reporting.  Delivery must occur within 7 days of entry of this Order 
for current personnel.  For all others, delivery must occur before they assume their 
responsibilities. 
 
From each individual or entity to which a Defendant delivered a copy of this 
Order, that Defendant must obtain, within 30 days, a signed and dated acknowledgment of 
receipt of this Order. 
VI. COMPLIANCE REPORTING 
IT IS FURTHER ORDERED that Defendants make timely submissions to the 
Commission: 
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STIPULATED ORDER 
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One year after entry of this Order, each Defendant must submit a compliance 
report, sworn under penalty of perjury: 
1. 
Each Defendant must:  (a) identify the primary physical, postal, and email 
address and telephone number, as designated points of contact, which representatives of 
the Commission and Plaintiff may use to communicate with Defendant; (b) identify all of 
that Defendant’s businesses by all of their names, telephone numbers, and physical, 
postal, email, and Internet addresses; (c) describe the activities of each business, 
including the products and services offered, the means of advertising, marketing, and 
sales, and the involvement of any other Defendant (which Individual Defendants must 
describe if they know or should know due to their own involvement); (d) describe in 
detail whether and how that Defendant is in compliance with each Section of this Order; 
and (e) provide a copy of each Order Acknowledgment obtained pursuant to this Order, 
unless previously submitted to the Commission.  
2. 
Additionally, each Individual Defendant must:  (a) identify all telephone 
numbers and all physical, postal, email and Internet addresses, including all residences; 
(b) identify all business activities, including any business for which such Defendant 
performs services whether as an employee or otherwise and any entity in which such 
Defendant has any ownership interest; and (c) describe in detail such Defendant’s 
involvement in each such business, including title, role, responsibilities, participation, 
authority, control, and any ownership. 
 
For 10 years after entry of this Order, each Defendant must submit a compliance 
notice, sworn under penalty of perjury, within 14 days of any change in the following:  
1. 
Each Defendant must report any change in:  (a) any designated point of 
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STIPULATED ORDER 
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contact; or (b) the structure of any Corporate Defendant or any entity that Defendant has 
any ownership interest in or controls directly or indirectly that may affect compliance 
obligations arising under this Order, including:  creation, merger, sale, or dissolution of 
the entity or any subsidiary, parent, or affiliate that engages in any acts or practices 
subject to this Order. 
2. 
Additionally, the Individual Defendant must report any change in:  (a) 
name, including aliases or fictitious name, or residence address; or (b) title or role in any 
business activity, including any business for which such Defendant performs services 
whether as an employee or otherwise and any entity in which such Defendant has any 
ownership interest, and identify the name, physical address, and any Internet address of 
the business or entity. 
 
Each Defendant must submit to the Commission notice of the filing of any 
bankruptcy petition, insolvency proceeding, or similar proceeding by or against such Defendant 
within 14 days of its filing. 
 
Any submission to the Commission required by this Order to be sworn under 
penalty of perjury must be true and accurate and comply with 28 U.S.C. § 1746, such as by 
concluding:  “I declare under penalty of perjury under the laws of the United States of America 
that the foregoing is true and correct.  Executed on:  _____” and supplying the date, signatory’s 
full name, title (if applicable), and signature. 
 
Unless otherwise directed by a Commission representative in writing, all 
submissions to the Commission pursuant to this Order must be emailed to DEbrief@ftc.gov or 
sent by overnight courier (not the U.S. Postal Service) to:  Associate Director for Enforcement, 
Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, 
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STIPULATED ORDER 
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Washington, DC  20580.  The subject line must begin:  FTC v. Oto Analytics, Inc., FTC Matter 
No. 2223021. 
VII.  RECORDKEEPING 
IT IS FURTHER ORDERED that Defendants must create certain records for 10 years 
after entry of the Order, unless otherwise specified below, and retain each such record for 5 
years.  Specifically, Corporate Defendant and the Individual Defendant for any business 
advertising, marketing, promoting, distributing, servicing, or offering any financial product or 
service that such Defendant, individually or collectively with any other Defendants, is a majority 
owner or controls directly or indirectly, must create and retain the following records: 
 
accounting records showing the revenues from all products or services sold; 
 
personnel records showing, for each person providing services, whether as an 
employee or otherwise, that person’s:  name; addresses; telephone numbers; job title or position; 
dates of service; and (if applicable) the reason for termination; 
 
records of all consumer complaints and refund requests, whether received directly 
or indirectly, such as through a third party, and any response; 
 
all records necessary to demonstrate full compliance with each provision of this 
Order, including all submissions to the Commission;  
 
a copy of each unique advertisement or other marketing material making a 
representation subject to this Order; and 
 
copies of all subpoenas and other communications with law enforcement, if such 
communications relate to Defendants’ compliance with this Order. 
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STIPULATED ORDER 
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VIII.   COMPLIANCE MONITORING 
IT IS FURTHER ORDERED that, for the purpose of monitoring Defendants’ compliance 
with this Order: 
A. 
Within 14 days of receipt of a written request from a representative of the 
Commission or Plaintiff, each Defendant must:  submit additional compliance reports or other 
requested information, which must be sworn under penalty of perjury; appear for depositions; 
and produce documents for inspection and copying.  The Commission and Plaintiff are also 
authorized to obtain discovery, without further leave of court, using any of the procedures 
prescribed by Federal Rules of Civil Procedure 29, 30 (including telephonic depositions), 31, 33, 
34, 36, 45, and 69. 
B. 
For matters concerning this Order, the Commission and Plaintiff are authorized to 
communicate directly with each Defendant.  Defendant must permit representatives of the 
Commission and Plaintiff to interview any employee or other person affiliated with any 
Defendant who has agreed to such an interview.  The person interviewed may have counsel 
present. 
C. 
The Commission and Plaintiff may use all other lawful means, including posing, 
through its representatives as consumers, suppliers, or other individuals or entities, to Defendants 
or any individual or entity affiliated with Defendants, without the necessity of identification or 
prior notice.  Nothing in this Order limits the Commission’s lawful use of compulsory process, 
pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b-1. 
D. 
Upon written request from a representative of the Commission or Plaintiff, any 
consumer reporting agency must furnish consumer reports concerning Individual Defendant, 
pursuant to Section 604(1) of the Fair Credit Reporting Act, 15 U.S.C. §1681b(a)(1). 
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STIPULATED ORDER 
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IX. RETENTION OF JURISDICTION 
IT IS FURTHER ORDERED that this Court retains jurisdiction of this matter for 
purposes of construction, modification, and enforcement of this Order. 
SO ORDERED this 3rd day of April, 2024.  
 
_______________________________ 
 
UNITED STATES DISTRICT JUDGE 
 
 
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STIPULATED ORDER 
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SO STIPULATED AND AGREED: 
 
FOR PLAINTIFF: 
 
FEDERAL TRADE COMMISSION 
 
 
 
 
 
 
 
 
 
 
Date:  
 
 
 
JULIA HEALD 
KATHERINE WORTHMAN 
PAOLA HENRY 
Attorneys 
Federal Trade Commission 
600 Pennsylvania Ave., NW 
Washington, DC  20580 
Mail Stop CC-10256 
202-326-3589 (Heald) 
202-326-2929 (Worthman) 
202-326-2673 (Henry) 
jheald@ftc.gov 
kworthman@ftc.gov 
phenry@ftc.gov 
 
 
 
FOR DEFENDANTS: 
 
 
 
 
 
 
 
 
 
 
Date:    
 
 
 
WILLIAM C. MACLEOD 
LAURA RIPOSO VANDRUFF 
Kelley Drye & Warren LLP 
Washington Harbour, Suite 400 
3050 K Street, NW 
Washington, DC 20007 
(202) 342-8811 
wmacleod@kelleydrye.com 
 
Counsel for Defendant Oto Analytics, Inc. 
 
Alexander Cheney 
Willkie Farr & Gallagher LLP 
One Front Street 
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STIPULATED ORDER 
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San Francisco, CA 94111 
(415) 858-7418 
acheney@willkie.com 
 
Counsel for Defendant Oto Analytics, Inc. 
 
 
 
 
 
 
 
 
 
Date:    
 
 
 
JACK P. DICANIO 
Skadden, Arps, Slate, Meagher & Flom LLP 
525 University Avenue 
Palo Alto, CA 94301 
(650) 470-4660 
jack.dicanio@skadden.com 
 
Counsel for Defendant Toby Scammell 
 
 
DEFENDANTS: 
 
 
 
 
 
 
 
 
 
Date:    
 
 
 
TOBY SCAMMELL INDIVIDUALLY 
AND AS AN OFFICER OF OTO 
ANALYTICS, INC. 
Case 3:24-cv-01661-WHO   Document 10   Filed 04/03/24   Page 13 of 13

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