SE vs Oregon
Content
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5 6 IN THE MATTER OF: 7 ELICKO TAIEB, an individual. 8 9 10 11 12 13 14
CIRCUIT COURT OF OREGON MARION COUNTY
Case No. 09C18898 Hon. Claudia M. Burton ASSURANCE OF VOLUNTARY COMPLIANCE 1.
Elicko Taieb does business in Oregon and is respondent herein. This agreement is between respondent and the Oregon Department of Justice (DOJ) acting pursuant to ORS 646.632.
PROCEDURE 2
This Assurance of Voluntary Compliance (AVC) is a settlement of a disputed matter. It shall not be considered an admission of a violation for any purpose. Respondent and DOJ agree
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that no provision of the AVC operates as a penalty, forfeiture, or punishment under the Constitution of the United States, under the Constitution of the State of Oregon, or under any other provision of law. 3. Respondent waives receipt of a notice from the State of Oregon pursuant to ORS 646.632(2) of the alleged unlawful trade practice and the relief to be sought.
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III III OF VOLUNTARY COMPLIANCE
Department of Justice ISIS SW SID Ave .• Suite 410 Portland, OR 97201 T: 971-673-1880 F: 971-673-1884
Page 1 of 6-ASSURANCE
DM-#2166380-2 Elicko Taieb (Smoking Everywhere, Inc.)
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4.
Respondent understands and agrees this AVC applies to respondent, respondent's principals; officers, directors, agents, employees, representatives, successors and assigns, jointly
and severally, while acting personally, or through any corporation or other business entities, whose acts, practices or policies are directed, formulated or controlled by respondent.
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5.
Respondent and respondent's attorney agree and understand that following acceptance of the AVC by DOJ, DOJ may communicate directly with respondent for the purpose of executing
and enforcing the terms of this agreement, resolving future complaints, and conducting undercover investigations of respondent to the extent permitted by law. 6. Respondent understands and agrees that if this AVC is accepted by DOJ, it will be submitted to the Circuit Court of the State of Oregon for Marion County for approval, and, if approved, will be filed with the court pursuant to ORS 646.632(2).
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7.
Respondent waives any further notice of submission to and filing with the court of this AVC. Respondent agrees to accept service of a conformed or court certified copy by prepaid first class mail sent to the address following respondent's signature or to respondent's attorney.
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8.
If monies which are ordered to be paid in this AVC are not paid timely, DOJ may convert the AVC to a money judgment under ORS 646.632(2) without notice to respondents. Respondents agree a copy of the money judgment may be sent to respondents, first class mail to the addresses following their respective signatures. 9. Respondent understands that, in addition to any other sanctions which may be imposed under this AVC or under the law, violation of any of the terms of this AVC may result in OF VOLUNTARY COMPLIANCE DM-#2166380-2 Elicko Taieb (Smoking Everywhere, Inc.)
Department of Justice 1515 SW 511> Ave., Suite 410 Portland, OR 97201 T: 971-673-1880 F: 971-673-1884
Page 2 of 6-ASSURANCE
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contempt of court proceedings, civil penalties of up to $25,000 for each violation, and such further relief as the court may deem appropriate. 646.642(2). lQ The parties acknowledge that no other promises, representations or agreements of any ORS 646.632(4), ORS 646.642(1) and ORS
nature have been made or entered into by the parties. The parties further acknowledge that this AVC constitutes
a single
and entire agreement that is not severable or divisible, except that if the remaining
any provision herein is found to be legally insufficient or unenforceable,
9 . provisions shall continue in full force and effect.
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This AVC may be executed in counterparts, and by different signatories on separate counterparts, each of which shall be deemed to constitute an original counterpart hereof, and all of which shall together constitute one and the same AVc. One or more counterparts of this
AVC may be delivered by facsimile or electronic transmission with the intent that it or they shall constitute an original counterpart hereof. REMEDIES 12. Respondent shall obey Oregon's Unlawful Trade Practices Act, ORS 646.605 to ORS 646.656. 13. Respondent shall not represent or imply that DOJ acquiesces or approves of respondent's past business practices, current efforts to reform its practices, or any future practices which respondent may adopt or consider adopting. DOJ's decision to settle this matter or to otherwise
unilaterally limit current or future enforcement action does not constitute approval or imply authorization for any past, present, or future business practice. //I OF VOLUNTARY COMPLIANCE
Department of Justice 1515 SW 5'" Ave., Suite 410
Page 3 of 6-ASSURANCE
DM-#2166380-2 Elicko Taieb (Smoking Everywhere, Inc.)
Portland, OR 97201 T: 971-<i73-1880 F: 971-<i73-1884
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14.
Upon execution of this AVC respondents shall pay the sum of $25,000 for deposit to the Department of Justice Account established pursuant to ORS 180.095to be used by DO] as provided by law.
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The following schedule shall apply to said payment: $6,250 shall be paid within 30 days of the filing and entry of this AVC. Thereafter, respondent shall pay eight, consecutive quarterly payments of $2,343.75 each, beginning with the first payment on December 5,2010. Respondent shall make the quarterly payments on the following schedule: Dec. 5, 2010: $2,343.75 Mar. 5,2011: $2,343.75 June 5,2011: $2,343.75 Sept. 5, 2011: $2,343.75 There shall be no penalty for early payment. 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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Effective immediately upon execution by respondent of this AV C, respondent agrees that respondent, his principals, officers, directors, agents, employees, representatives, successors
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and assigns, while acting personally, or through any corporations or other business entities, whose acts, practices or policies are directed, formulated or controlled by respondent, shall be permanently enjoined and restrained from engaging in any business in the state of Oregon that relates to electronic cigarettes, tobacco products, nicotine delivery devices, drugs, or drug delivery devices of any kind. For the purposes of this AVC, "engaging in any business" in /II III III
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Page 4 of 6-ASSURANCE OF VOLUNTARY COMPLIANCE
Department of Justice 1515 SW 5th Ave., Suite 410 Portland, OR 97201 T: 971-673-1880 F: 971-673-1884
DM-#2166380-2 Elicko Taieb (Smoking Everywhere, Inc.)
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Oregon shall mean advertising, marketing, promoting or offering for sale the specified goods, or services related to those goods, in Oregon; delivering the specified goods, or services related to those goods, into or from Oregon; and/or accepting payment for the specified goods, or services related to those goods, from individuals or entities located in Oregon. APPROVAL BY COURT APPROVED FOR FILING and SO ORDERED this _ day of , 2010.
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Circuit Court Judge REVIEW BY RESPONDENT'S Approved as to form. ATTORNEY
Dennis Koho, Koho & Beatty Attorneys at Law LLC Attorney for Respondent RESPONDENT'S SIGNATURE AND A NOWLEDGMENT d each of its terms. Respondent
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Respondent has read and understands this agrees to each and every term. Individual
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KEVIN L HAGEN MY COMMISSION # DO 972097 EXPIRES; Ju!y 16, 2014
Bonded Thru Notary Public Underwriters
Print Name Address
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Page 5 of (rASSURANCE
otary Public for F
OF VOLUNTARY
COMPLIANCE
DM-#2166380-2 Elicko Taieb (Smoking Everywhere, Inc.)
Department ofJustice 1515 SWS'" Ave., Suite4JO Portland, OR 9720 J T: 971.Q73-J880 F: 971.Q73-1884
ACCEPTANCE
OF DO.J , 2010.
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3 Accepted this _ day of
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JOHN R. KROGER Attorney General David Hart OSB 002750 Senior Assistant Attorney General Oregon Degartment of Justice 1515 SW 5 Ave, Suite 410 Portland, OR 97201 Tel.: (971) 673-1880 IIFax: (971) 673-1884 [email protected]
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Page 6 of 6-ASSURANCE OF VOLUNTARY COMPLIANCE DM-#2166380-2 Elicko Taieb (Smoking Everywhere. Inc.)
Department of Justice ISIS sw Sib Ave .• Suite 410 Portland, OR 9720 I T: 971.{)73-1880 F: 971'{)73-1884
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IN THE CIRCUIT COURT OF THE STATE OF OREGON
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FOR THE COUNTY OF MARION 4
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STATE OF OREGON ex rel. JOHN KROGER, Attorney General of Oregon, Plaintiff,
v.
Case No. 09CI8898 Hon. Claudia Burton STIPULATED GENERAL JUDGMENT and MONEY AWARD
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SMOKING EVERYWHERE, INC., Defendant. Plaintiff, State of Oregon, acting by and through John R. Kroger, Attorney General of Oregon ("DOJ") brought this action pursuant to ORS 646.632 against Defendant Smoking Everywhere, Inc. (''Defendant''). The parties now consent to the entry of this Stipulated General Judgment ("Judgment"). This Judgment disposes of all claims against Defendant in the above captioned matter. NOW THEREFORE, upon the consent of the parties hereto IT IS HEREBY ORDERED, ADJUDGED and DECREED as follows: I. FINDINGS 1. This Court has jurisdiction over the subject matter of this lawsuit and over all parties. 2 The terms of this Judgment shall be governed by the laws of the State of Oregon.
3.
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Page
Entry of this Judgment is in the public interest. 4. Defendant is a Florida corporation. 5. Defendant did business in Oregon by selling and distributing electronic cigarettes. 1STIPULATED GENERAL JUDGMENT and MONEY AWARD
DM#2166934-3 State v. Smoking Everywhere, Inc.
Department of Justice 1515 SW 5111 Ave., Suite 410 Portland, OR 97201 T: 971-673-1880 IIF: 971-673-1884
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6. Electronic cigarettes are nicotine delivery devices constructed to mimic the look and experience of smoking a conventional cigarette. battery-operated, Defendant's electronic cigarettes contain a
heating element and a replaceable plastic cartridge that contains various The heating element vaporizes the liquid, which is inhaled
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chemicals, including liquid nicotine. by the user.
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When selling and promoting electronic cigarettes in Oregon, Defendant violated ORS 646.608 (l)(e).
II. ADMINISTRATIVE PROVISIONS 8.
Defendant understands and agrees that the terms and conditions of this Judgment apply to Defendant, its principals, officers, directors, agents, employees, representatives, successors and
assigns, while acting personally, or through any corporations or other business entities, whose acts, practices or policies are directed, formulated or controlled by Defendant.
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9.
Defendant agrees and understands that following the filing and entry of this Judgment with the court, DOJ may communicate directly with Defendant for the purpose of executing and enforcing the terms of this Judgment, resolving future complaints and conducting undercover investigations to the extent permitted by law of the Defendant. 10. Defendant understands that, if it violates the terms or conditions of any portion of this Judgment, DOJ may institute appropriate legal action to enforce said Judgment, including, but not limited to, contempt proceedings before the Court, civil or punitive penalties, and such further relief as the Court may deem appropriate. III STIPULATED GENERAL JUDGMENT and MONEY AWARD
Department of Justice 1515 SW5tb Ave., Suite 410 Portland, OR 97201 T: 971-673-1880" F: 971-673-1884
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DM#2166934-3 State v. Snwking Everywhere. Inc.
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11. Defendant and DOJ acknowledge that no other promises, representations or agreements
of any nature have been made or entered into by the parties. The parties further acknowledge that this Judgment constitutes a single and entire agreement that is not severable or divisible, except that if any provision herein is found to be legally insufficient or unenforceable, remaining provisions shall continue in full force and effect. 12. This Stipulated General Judgment resolves all claims brought by Plaintiff in Marion County Case No. 09C18898. 13. Defendant shall not represent or imply that DOJ acquiesces or approves of Defendant's: past business practices; current efforts to reform their practices; or, any future practices that Defendant may adopt or consider adopting. DOl's decision to settle this matter or to otherwise the
unilaterally limit current or future enforcement action does not constitute approval or imply authorization for any past, present, or future business practices of the Defendant. 14. This Judgment may be executed in counterparts, and by different signatories on separate counterparts, each of which shall be deemed to constitute an original counterpart hereof, and all of which shall together constitute one and the same Judgment. One or more counterparts of this
Judgment may be delivered by facsimile or electronic transmission with the intent that it or they shall constitute an original counterpart hereof.
III. INJUNCTION
15. On DOl's claims for relief under Oregon's Unlawful Trade Practices Act, ORS 646.605 through 646.656, JUDGMENT in the form of PERMANENT INJUNCTIVE RELIEF is awarded as follows: STIPULATED GENERAL JUDGMENT and MONEY AWARD
Department of Justice 1515 SW 5th Ave., Suite4to Portland, OR 97201 T: 971-673-1880 IIF: 971-673-1884
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DM#2166934-3 State v. Smoking Everywhere. Inc.
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Defendant, its principals, officers, directors, agents, employees, representatives, successors and assigns, while acting personally, or through any corporations or other business entities, whose acts, practices or policies are directed, formulated or controlled by Defendant, shall be permanently enjoined and restrained from engaging in any business in the state of Oregon. For the purposes of this Judgment, "engaging in any business" in Oregon shall mean promoting products for sale in Oregon, delivering goods or services into Oregon or from Oregon, and/or accepting payment from individuals or entities located in Oregon.
IV. MONEY A WARD
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1~ JUDGMENT, in the form of a MONEY AWARD as described by the Money Award Summary set forth below, shall be entered for DOJ and against Defendant. Defendant shall pay DOJ's attorney fees and costs for this litigation in the amount of $95,862.07, which shall be deposited to the Protection and Education Revolving Account established pursuant to ORS 180.095 to be used by DOJ as provided by law. 17. The following schedule shall apply to said payment: $24,000.07 shall be paid within 30 days of the filing and entry of this judgment. Thereafter, Defendant shall pay eight, consecutive quarterly payments of $8,982.75 each, beginning with the first payment on December 5, 2010. Defendant shall make the quarterly payments on the following schedule: Dec. 5,2010: $8,982.75 Mar. 5,2011: $8,982.75 June 5,2011: $8,982.75 Sept. 5, 2011: $8,982.75 There shall be no penalty for early payment.
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Dec. 5,2011: $8,982.75 Mar. 5, 2012: $8,982.75 June 5,2012: $8,982.75 Sept. 5, 2012: $8,982.75
1// STIPULATED GENERAL JUDGMENT and MONEY AWARD
DM#2166934-3 State v. Smoking Everywhere, Inc.
Department of Justice 1515 SW 5th Ave., Suite 410 Portland. OR 97201 T: 971-673-1880 IIF: 97H573-1884
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18. So 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. 19. MONEY AWARD SUMMARY A. Judgment Creditor: State of Oregon, ex reI. John Kroger, Attorney General of Oregon. a. Address of Judgment Creditor: 1162 Court Street, NE, Salem, OR 97301-4096. b. Judgment Creditor's Attorney: David Hart, OSB 002750, Senior Assistant Attorney General. c. Address of Judgment Creditor's Attorney: Oregon Department of Justice, 1515 SW 5th Avenue, Suite 410, Portland, OR 97201. Telephone: (971) 6731880. Fax: (971) 673-1884. Email: [email protected]. B. Judgment Debtor: SMOKING EVERYWHERE, INe. a. Address of Judgment Debtor: 1500 Weston Rd., Suite 200, Weston, FL 33326
b.
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Date of Birth: NIA _
NIA
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c. TaxID#:
d. Driver's License No.1 State ofIssuance:
e. Judgment Debtor's Attorney: Dennis Koho (OR) I Kevin Hagen (FL) f. Address of Judgment Debtor's Attorney: i. Dennis Koho, Koho & Beatty Attorneys at Law LLC, 132 Glynbrook St. N, Suite 350, Keizer, OR 97303. TeL (503) 390-3501. Fax. (503) 390-3506. Email: [email protected]
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STIPULATED GENERAL JUDGMENT and MONEY AWARD
DM#2166934-3 State v. Smoking Everywhere. Inc.
Department of Justice 1515 SW SibAve., Suite 410 Portland, OR 97201 T: 971-673-1880 IIF: 971-673-1884
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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.
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STIPULATED GENERAL JUDGMENT and MONEY AWARD
Department of Justice 1515 SW 5th Ave .. Suite 410 Portland. OR 97201 T: 971-673-1880 IIF: 971-673-1884
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DM#2166934-3 State v. Snwking Everywhere. Inc.
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H. Attorneys' Fees and Associated Costs: The parties have stipulated that Defendant shall pay DOJ's attorney fees and costs in the amount of $95,862.07, which shall be deposited to the Protection and Education Revolving Account established pursuant to ORS 180.095 to be used by DOJ as provided by law. The following schedule shall apply to said payment: $24,000.07 shall be paid within 30 days of the filing and entry of this judgment. Thereafter, Defendant shall pay eight, consecutive quarterly payments of $8,982.75 each, beginning with the first payment on December 5,2010. quarterly payments on the following schedule: Dec. 5,2010: Mar. 5,2011: June 5,2011: $8,982.75 $8,982.75 $8,982.75 Dec. 5,2011: $8,982.75 Defendant shall make the
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Mar. 5,2012: $8,982.75 June 5,2012: $8,982.75 Sept. 5, 2012: $8,982.75
Sept. 5, 2011: $8,982.75 There shall be no penalty for early payment. DATED: , 2010.
Hon. Claudia Burton Marion County Circuit Court Judge Submitted by: David Hart OSB 002750 Senior Assistant Attorney General Oregon Department of Justice 1515 SW 5th Ave, Suite 410, Portland, OR 97201 Tel.: (971) 673-1880 II Fax: (971) 673-1884 [email protected] Attorneys for Plaintiff UTCR 5.100 CERTIFCATION: the order: Opposing counsel stipulates that no objection exists as to the form of
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Signed: Dated: Dennis Koho, OSB 043310 Koho & Beatty, Attorneys At Law, PC 132 Glynbrook N, Suite 350, Keizer, OR 97303 Tel.: 503-390-3501 IIFax 503-390-3506 Email: [email protected] Attorneys for Defendant STIPULATED GENERAL JUDGMENT
DM#2166934-3 State v. Smoking Everywhere. Inc.
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and MONEY AWARD
Department of Justice 1515 SW Sib Ave .• Suite 410 Portland, OR 97201 T: 971-673-1880 IIF: 971-673-1884
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IT IS SO STIPULATED:
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3 4 5 I, DEFENDANT'S SIGNATURE
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 8 9 10 11 12 13 14 15 16 17 18 19 20 21 empowered to sign this Stipulated General Judgment and terms hereof. I have read and understand this agr ement behalf, I agree to each and every term. oney Award and bind the same to the
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day of__ ~~~
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, 2010.
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STIPULATED
DM#2166934-3
GENERAL JUDGMENT
v.
and MONEY AWARD
State
Smoking Everywhere, Inc.
Department of Justice 1515 SW 5111 Ave., Suite 410
Portland, OR 97201
T: 971'{)73-1880 IIF: 971'{)73-1884
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DOJ's ACCEPTANCE
DATED:
, 2010. JOHN R. KROGER Attorney General
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David Hart OSB 002750 Senior Assistant Attorney General Of Attorneys for Plaintiff Oregon Department of Justice 1515 SW 5th Ave., Suite 410 Portland, OR 97201 david. hart @doj.state.or.us Tel: 971-673-1880 I Fax: 971-673-1884
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STIPULATED
GENERAL JUDGMENT
and MONEY AWARD
DM#2166934-3 State v. Smoking Everywhere, Inc.
Department of Justice ISIS SW 5"' Ave., Suite 410 Portland, OR 97201 T: 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 foregoing STIPULATED GENERAL JUDGMENT and MONEY AWARD on the persons identified below byemail and US Mail, frrst-class postage prepaid to: Dennis Koho Koho & Beatty, Attorneys at Law LLC 132 Glynbrook St. N, Suite 350 Keizer, OR 97303 Email: [email protected] Kevin Hagen Hagen & Hagen, PA 3531 Griffm Rd. Fort Lauderdale, FL 33312 Email: [email protected] Attorneys for Defendant Smoking Everywhere, Inc.
DATED:
, 2010. David Hart Senior Assistant Attorney General
Page 10 - STIPULATED
GENERAL JUDGMENT
and MONEY AWARD
DM#2166934-3 State v. Smoking Everywhere, Inc.
Department of Justice 1515 SW 5th Ave .. Suite 410 Portland, OR 97201 T: 971-673-1880 IIF: 971-673-1884
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5 6 IN THE MATTER OF: 7 ELICKO TAIEB, an individual. 8 9 10 11 12 13 14
CIRCUIT COURT OF OREGON MARION COUNTY
Case No. 09C18898 Hon. Claudia M. Burton ASSURANCE OF VOLUNTARY COMPLIANCE 1.
Elicko Taieb does business in Oregon and is respondent herein. This agreement is between respondent and the Oregon Department of Justice (DOJ) acting pursuant to ORS 646.632.
PROCEDURE 2
This Assurance of Voluntary Compliance (AVC) is a settlement of a disputed matter. It shall not be considered an admission of a violation for any purpose. Respondent and DOJ agree
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that no provision of the AVC operates as a penalty, forfeiture, or punishment under the Constitution of the United States, under the Constitution of the State of Oregon, or under any other provision of law. 3. Respondent waives receipt of a notice from the State of Oregon pursuant to ORS 646.632(2) of the alleged unlawful trade practice and the relief to be sought.
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III III OF VOLUNTARY COMPLIANCE
Department of Justice ISIS SW SID Ave .• Suite 410 Portland, OR 97201 T: 971-673-1880 F: 971-673-1884
Page 1 of 6-ASSURANCE
DM-#2166380-2 Elicko Taieb (Smoking Everywhere, Inc.)
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4.
Respondent understands and agrees this AVC applies to respondent, respondent's principals; officers, directors, agents, employees, representatives, successors and assigns, jointly
and severally, while acting personally, or through any corporation or other business entities, whose acts, practices or policies are directed, formulated or controlled by respondent.
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5.
Respondent and respondent's attorney agree and understand that following acceptance of the AVC by DOJ, DOJ may communicate directly with respondent for the purpose of executing
and enforcing the terms of this agreement, resolving future complaints, and conducting undercover investigations of respondent to the extent permitted by law. 6. Respondent understands and agrees that if this AVC is accepted by DOJ, it will be submitted to the Circuit Court of the State of Oregon for Marion County for approval, and, if approved, will be filed with the court pursuant to ORS 646.632(2).
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Respondent waives any further notice of submission to and filing with the court of this AVC. Respondent agrees to accept service of a conformed or court certified copy by prepaid first class mail sent to the address following respondent's signature or to respondent's attorney.
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8.
If monies which are ordered to be paid in this AVC are not paid timely, DOJ may convert the AVC to a money judgment under ORS 646.632(2) without notice to respondents. Respondents agree a copy of the money judgment may be sent to respondents, first class mail to the addresses following their respective signatures. 9. Respondent understands that, in addition to any other sanctions which may be imposed under this AVC or under the law, violation of any of the terms of this AVC may result in OF VOLUNTARY COMPLIANCE DM-#2166380-2 Elicko Taieb (Smoking Everywhere, Inc.)
Department of Justice 1515 SW 511> Ave., Suite 410 Portland, OR 97201 T: 971-673-1880 F: 971-673-1884
Page 2 of 6-ASSURANCE
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contempt of court proceedings, civil penalties of up to $25,000 for each violation, and such further relief as the court may deem appropriate. 646.642(2). lQ The parties acknowledge that no other promises, representations or agreements of any ORS 646.632(4), ORS 646.642(1) and ORS
nature have been made or entered into by the parties. The parties further acknowledge that this AVC constitutes
a single
and entire agreement that is not severable or divisible, except that if the remaining
any provision herein is found to be legally insufficient or unenforceable,
9 . provisions shall continue in full force and effect.
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11.
This AVC may be executed in counterparts, and by different signatories on separate counterparts, each of which shall be deemed to constitute an original counterpart hereof, and all of which shall together constitute one and the same AVc. One or more counterparts of this
AVC may be delivered by facsimile or electronic transmission with the intent that it or they shall constitute an original counterpart hereof. REMEDIES 12. Respondent shall obey Oregon's Unlawful Trade Practices Act, ORS 646.605 to ORS 646.656. 13. Respondent shall not represent or imply that DOJ acquiesces or approves of respondent's past business practices, current efforts to reform its practices, or any future practices which respondent may adopt or consider adopting. DOJ's decision to settle this matter or to otherwise
unilaterally limit current or future enforcement action does not constitute approval or imply authorization for any past, present, or future business practice. //I OF VOLUNTARY COMPLIANCE
Department of Justice 1515 SW 5'" Ave., Suite 410
Page 3 of 6-ASSURANCE
DM-#2166380-2 Elicko Taieb (Smoking Everywhere, Inc.)
Portland, OR 97201 T: 971-<i73-1880 F: 971-<i73-1884
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14.
Upon execution of this AVC respondents shall pay the sum of $25,000 for deposit to the Department of Justice Account established pursuant to ORS 180.095to be used by DO] as provided by law.
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The following schedule shall apply to said payment: $6,250 shall be paid within 30 days of the filing and entry of this AVC. Thereafter, respondent shall pay eight, consecutive quarterly payments of $2,343.75 each, beginning with the first payment on December 5,2010. Respondent shall make the quarterly payments on the following schedule: Dec. 5, 2010: $2,343.75 Mar. 5,2011: $2,343.75 June 5,2011: $2,343.75 Sept. 5, 2011: $2,343.75 There shall be no penalty for early payment. 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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Effective immediately upon execution by respondent of this AV C, respondent agrees that respondent, his principals, officers, directors, agents, employees, representatives, successors
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and assigns, while acting personally, or through any corporations or other business entities, whose acts, practices or policies are directed, formulated or controlled by respondent, shall be permanently enjoined and restrained from engaging in any business in the state of Oregon that relates to electronic cigarettes, tobacco products, nicotine delivery devices, drugs, or drug delivery devices of any kind. For the purposes of this AVC, "engaging in any business" in /II III III
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Page 4 of 6-ASSURANCE OF VOLUNTARY COMPLIANCE
Department of Justice 1515 SW 5th Ave., Suite 410 Portland, OR 97201 T: 971-673-1880 F: 971-673-1884
DM-#2166380-2 Elicko Taieb (Smoking Everywhere, Inc.)
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Oregon shall mean advertising, marketing, promoting or offering for sale the specified goods, or services related to those goods, in Oregon; delivering the specified goods, or services related to those goods, into or from Oregon; and/or accepting payment for the specified goods, or services related to those goods, from individuals or entities located in Oregon. APPROVAL BY COURT APPROVED FOR FILING and SO ORDERED this _ day of , 2010.
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Circuit Court Judge REVIEW BY RESPONDENT'S Approved as to form. ATTORNEY
Dennis Koho, Koho & Beatty Attorneys at Law LLC Attorney for Respondent RESPONDENT'S SIGNATURE AND A NOWLEDGMENT d each of its terms. Respondent
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Respondent has read and understands this agrees to each and every term. Individual
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19 20 21 22 23 24 SUB~~~~~~~~~
KEVIN L HAGEN MY COMMISSION # DO 972097 EXPIRES; Ju!y 16, 2014
Bonded Thru Notary Public Underwriters
Print Name Address
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Page 5 of (rASSURANCE
otary Public for F
OF VOLUNTARY
COMPLIANCE
DM-#2166380-2 Elicko Taieb (Smoking Everywhere, Inc.)
Department ofJustice 1515 SWS'" Ave., Suite4JO Portland, OR 9720 J T: 971.Q73-J880 F: 971.Q73-1884
ACCEPTANCE
OF DO.J , 2010.
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3 Accepted this _ day of
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JOHN R. KROGER Attorney General David Hart OSB 002750 Senior Assistant Attorney General Oregon Degartment of Justice 1515 SW 5 Ave, Suite 410 Portland, OR 97201 Tel.: (971) 673-1880 IIFax: (971) 673-1884 [email protected]
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Page 6 of 6-ASSURANCE OF VOLUNTARY COMPLIANCE DM-#2166380-2 Elicko Taieb (Smoking Everywhere. Inc.)
Department of Justice ISIS sw Sib Ave .• Suite 410 Portland, OR 9720 I T: 971.{)73-1880 F: 971'{)73-1884
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IN THE CIRCUIT COURT OF THE STATE OF OREGON
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FOR THE COUNTY OF MARION 4
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STATE OF OREGON ex rel. JOHN KROGER, Attorney General of Oregon, Plaintiff,
v.
Case No. 09CI8898 Hon. Claudia Burton STIPULATED GENERAL JUDGMENT and MONEY AWARD
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SMOKING EVERYWHERE, INC., Defendant. Plaintiff, State of Oregon, acting by and through John R. Kroger, Attorney General of Oregon ("DOJ") brought this action pursuant to ORS 646.632 against Defendant Smoking Everywhere, Inc. (''Defendant''). The parties now consent to the entry of this Stipulated General Judgment ("Judgment"). This Judgment disposes of all claims against Defendant in the above captioned matter. NOW THEREFORE, upon the consent of the parties hereto IT IS HEREBY ORDERED, ADJUDGED and DECREED as follows: I. FINDINGS 1. This Court has jurisdiction over the subject matter of this lawsuit and over all parties. 2 The terms of this Judgment shall be governed by the laws of the State of Oregon.
3.
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Page
Entry of this Judgment is in the public interest. 4. Defendant is a Florida corporation. 5. Defendant did business in Oregon by selling and distributing electronic cigarettes. 1STIPULATED GENERAL JUDGMENT and MONEY AWARD
DM#2166934-3 State v. Smoking Everywhere, Inc.
Department of Justice 1515 SW 5111 Ave., Suite 410 Portland, OR 97201 T: 971-673-1880 IIF: 971-673-1884
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6. Electronic cigarettes are nicotine delivery devices constructed to mimic the look and experience of smoking a conventional cigarette. battery-operated, Defendant's electronic cigarettes contain a
heating element and a replaceable plastic cartridge that contains various The heating element vaporizes the liquid, which is inhaled
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chemicals, including liquid nicotine. by the user.
7.
When selling and promoting electronic cigarettes in Oregon, Defendant violated ORS 646.608 (l)(e).
II. ADMINISTRATIVE PROVISIONS 8.
Defendant understands and agrees that the terms and conditions of this Judgment apply to Defendant, its principals, officers, directors, agents, employees, representatives, successors and
assigns, while acting personally, or through any corporations or other business entities, whose acts, practices or policies are directed, formulated or controlled by Defendant.
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9.
Defendant agrees and understands that following the filing and entry of this Judgment with the court, DOJ may communicate directly with Defendant for the purpose of executing and enforcing the terms of this Judgment, resolving future complaints and conducting undercover investigations to the extent permitted by law of the Defendant. 10. Defendant understands that, if it violates the terms or conditions of any portion of this Judgment, DOJ may institute appropriate legal action to enforce said Judgment, including, but not limited to, contempt proceedings before the Court, civil or punitive penalties, and such further relief as the Court may deem appropriate. III STIPULATED GENERAL JUDGMENT and MONEY AWARD
Department of Justice 1515 SW5tb Ave., Suite 410 Portland, OR 97201 T: 971-673-1880" F: 971-673-1884
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DM#2166934-3 State v. Snwking Everywhere. Inc.
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11. Defendant and DOJ acknowledge that no other promises, representations or agreements
of any nature have been made or entered into by the parties. The parties further acknowledge that this Judgment constitutes a single and entire agreement that is not severable or divisible, except that if any provision herein is found to be legally insufficient or unenforceable, remaining provisions shall continue in full force and effect. 12. This Stipulated General Judgment resolves all claims brought by Plaintiff in Marion County Case No. 09C18898. 13. Defendant shall not represent or imply that DOJ acquiesces or approves of Defendant's: past business practices; current efforts to reform their practices; or, any future practices that Defendant may adopt or consider adopting. DOl's decision to settle this matter or to otherwise the
unilaterally limit current or future enforcement action does not constitute approval or imply authorization for any past, present, or future business practices of the Defendant. 14. This Judgment may be executed in counterparts, and by different signatories on separate counterparts, each of which shall be deemed to constitute an original counterpart hereof, and all of which shall together constitute one and the same Judgment. One or more counterparts of this
Judgment may be delivered by facsimile or electronic transmission with the intent that it or they shall constitute an original counterpart hereof.
III. INJUNCTION
15. On DOl's claims for relief under Oregon's Unlawful Trade Practices Act, ORS 646.605 through 646.656, JUDGMENT in the form of PERMANENT INJUNCTIVE RELIEF is awarded as follows: STIPULATED GENERAL JUDGMENT and MONEY AWARD
Department of Justice 1515 SW 5th Ave., Suite4to Portland, OR 97201 T: 971-673-1880 IIF: 971-673-1884
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DM#2166934-3 State v. Smoking Everywhere. Inc.
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Defendant, its principals, officers, directors, agents, employees, representatives, successors and assigns, while acting personally, or through any corporations or other business entities, whose acts, practices or policies are directed, formulated or controlled by Defendant, shall be permanently enjoined and restrained from engaging in any business in the state of Oregon. For the purposes of this Judgment, "engaging in any business" in Oregon shall mean promoting products for sale in Oregon, delivering goods or services into Oregon or from Oregon, and/or accepting payment from individuals or entities located in Oregon.
IV. MONEY A WARD
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1~ JUDGMENT, in the form of a MONEY AWARD as described by the Money Award Summary set forth below, shall be entered for DOJ and against Defendant. Defendant shall pay DOJ's attorney fees and costs for this litigation in the amount of $95,862.07, which shall be deposited to the Protection and Education Revolving Account established pursuant to ORS 180.095 to be used by DOJ as provided by law. 17. The following schedule shall apply to said payment: $24,000.07 shall be paid within 30 days of the filing and entry of this judgment. Thereafter, Defendant shall pay eight, consecutive quarterly payments of $8,982.75 each, beginning with the first payment on December 5, 2010. Defendant shall make the quarterly payments on the following schedule: Dec. 5,2010: $8,982.75 Mar. 5,2011: $8,982.75 June 5,2011: $8,982.75 Sept. 5, 2011: $8,982.75 There shall be no penalty for early payment.
1//
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Dec. 5,2011: $8,982.75 Mar. 5, 2012: $8,982.75 June 5,2012: $8,982.75 Sept. 5, 2012: $8,982.75
1// STIPULATED GENERAL JUDGMENT and MONEY AWARD
DM#2166934-3 State v. Smoking Everywhere, Inc.
Department of Justice 1515 SW 5th Ave., Suite 410 Portland. OR 97201 T: 971-673-1880 IIF: 97H573-1884
Page 4 -
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18. So 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. 19. MONEY AWARD SUMMARY A. Judgment Creditor: State of Oregon, ex reI. John Kroger, Attorney General of Oregon. a. Address of Judgment Creditor: 1162 Court Street, NE, Salem, OR 97301-4096. b. Judgment Creditor's Attorney: David Hart, OSB 002750, Senior Assistant Attorney General. c. Address of Judgment Creditor's Attorney: Oregon Department of Justice, 1515 SW 5th Avenue, Suite 410, Portland, OR 97201. Telephone: (971) 6731880. Fax: (971) 673-1884. Email: [email protected]. B. Judgment Debtor: SMOKING EVERYWHERE, INe. a. Address of Judgment Debtor: 1500 Weston Rd., Suite 200, Weston, FL 33326
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Date of Birth: NIA _
NIA
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c. TaxID#:
d. Driver's License No.1 State ofIssuance:
e. Judgment Debtor's Attorney: Dennis Koho (OR) I Kevin Hagen (FL) f. Address of Judgment Debtor's Attorney: i. Dennis Koho, Koho & Beatty Attorneys at Law LLC, 132 Glynbrook St. N, Suite 350, Keizer, OR 97303. TeL (503) 390-3501. Fax. (503) 390-3506. Email: [email protected]
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STIPULATED GENERAL JUDGMENT and MONEY AWARD
DM#2166934-3 State v. Smoking Everywhere. Inc.
Department of Justice 1515 SW SibAve., Suite 410 Portland, OR 97201 T: 971-673-1880 IIF: 971-673-1884
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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.
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STIPULATED GENERAL JUDGMENT and MONEY AWARD
Department of Justice 1515 SW 5th Ave .. Suite 410 Portland. OR 97201 T: 971-673-1880 IIF: 971-673-1884
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DM#2166934-3 State v. Snwking Everywhere. Inc.
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H. Attorneys' Fees and Associated Costs: The parties have stipulated that Defendant shall pay DOJ's attorney fees and costs in the amount of $95,862.07, which shall be deposited to the Protection and Education Revolving Account established pursuant to ORS 180.095 to be used by DOJ as provided by law. The following schedule shall apply to said payment: $24,000.07 shall be paid within 30 days of the filing and entry of this judgment. Thereafter, Defendant shall pay eight, consecutive quarterly payments of $8,982.75 each, beginning with the first payment on December 5,2010. quarterly payments on the following schedule: Dec. 5,2010: Mar. 5,2011: June 5,2011: $8,982.75 $8,982.75 $8,982.75 Dec. 5,2011: $8,982.75 Defendant shall make the
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Mar. 5,2012: $8,982.75 June 5,2012: $8,982.75 Sept. 5, 2012: $8,982.75
Sept. 5, 2011: $8,982.75 There shall be no penalty for early payment. DATED: , 2010.
Hon. Claudia Burton Marion County Circuit Court Judge Submitted by: David Hart OSB 002750 Senior Assistant Attorney General Oregon Department of Justice 1515 SW 5th Ave, Suite 410, Portland, OR 97201 Tel.: (971) 673-1880 II Fax: (971) 673-1884 [email protected] Attorneys for Plaintiff UTCR 5.100 CERTIFCATION: the order: Opposing counsel stipulates that no objection exists as to the form of
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Signed: Dated: Dennis Koho, OSB 043310 Koho & Beatty, Attorneys At Law, PC 132 Glynbrook N, Suite 350, Keizer, OR 97303 Tel.: 503-390-3501 IIFax 503-390-3506 Email: [email protected] Attorneys for Defendant STIPULATED GENERAL JUDGMENT
DM#2166934-3 State v. Smoking Everywhere. Inc.
_
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and MONEY AWARD
Department of Justice 1515 SW Sib Ave .• Suite 410 Portland, OR 97201 T: 971-673-1880 IIF: 971-673-1884
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IT IS SO STIPULATED:
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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 8 9 10 11 12 13 14 15 16 17 18 19 20 21 empowered to sign this Stipulated General Judgment and terms hereof. I have read and understand this agr ement behalf, I agree to each and every term. oney Award and bind the same to the
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day of__ ~~~
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, 2010.
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Page 8 -
STIPULATED
DM#2166934-3
GENERAL JUDGMENT
v.
and MONEY AWARD
State
Smoking Everywhere, Inc.
Department of Justice 1515 SW 5111 Ave., Suite 410
Portland, OR 97201
T: 971'{)73-1880 IIF: 971'{)73-1884
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DOJ's ACCEPTANCE
DATED:
, 2010. JOHN R. KROGER Attorney General
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David Hart OSB 002750 Senior Assistant Attorney General Of Attorneys for Plaintiff Oregon Department of Justice 1515 SW 5th Ave., Suite 410 Portland, OR 97201 david. hart @doj.state.or.us Tel: 971-673-1880 I Fax: 971-673-1884
Page 9 -
STIPULATED
GENERAL JUDGMENT
and MONEY AWARD
DM#2166934-3 State v. Smoking Everywhere, Inc.
Department of Justice ISIS SW 5"' Ave., Suite 410 Portland, OR 97201 T: 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 foregoing STIPULATED GENERAL JUDGMENT and MONEY AWARD on the persons identified below byemail and US Mail, frrst-class postage prepaid to: Dennis Koho Koho & Beatty, Attorneys at Law LLC 132 Glynbrook St. N, Suite 350 Keizer, OR 97303 Email: [email protected] Kevin Hagen Hagen & Hagen, PA 3531 Griffm Rd. Fort Lauderdale, FL 33312 Email: [email protected] Attorneys for Defendant Smoking Everywhere, Inc.
DATED:
, 2010. David Hart Senior Assistant Attorney General
Page 10 - STIPULATED
GENERAL JUDGMENT
and MONEY AWARD
DM#2166934-3 State v. Smoking Everywhere, Inc.
Department of Justice 1515 SW 5th Ave .. Suite 410 Portland, OR 97201 T: 971-673-1880 IIF: 971-673-1884
