Opinion
Case No. 03-CV-8307 (LAK).
February 23, 2005
Georges H. Nahitchevansky, James D. Weinberger, New York, New York, FROSS ZELNICK LEHRMAN ZISSU, PC, Counsel for Plaintiffs Pearson Education, Inc. and John Wiley Sons, Inc.
Thomas M. Furth, New York, New York, THOMAS M. FURTH, COUNSELOR AT LAW, Counsel for Defendants Anjum Sehgal, Steven Sehgal, Vijay Sehgal and Suman Sehgal d/b/a Gaafoo.com and GaafooWorks.com.
CONSENT ORDER
This motion for contempt having been brought by plaintiffs Pearson Education Inc. and John Wiley Sons, Inc. ("Plaintiffs") against defendants Anjum, Steven, Vijay and Suman ("Defendants") on or about December 17, 2004; and
Defendants and their counsel having been duly served with Plaintiff's moving papers on December 17, 2004 and on or about January 6, 2005; and
It having been determined on consent that Defendants have materially violated their obligations under the Consent Judgment issued by this Court on February 19, 2004 (the "Consent Judgment"), which is clear and unambiguous; and
The parties wish to settle the matter without further litigation, and to that end have agreed to entry of this Consent Order to dispose of all of the claims set forth in Plaintiffs' motion for contempt:
IT IS, THEREFORE, ORDERED that an Order of Contempt be and is hereby entered against Defendants as follows:
1. Defendants are in contempt of Court due to their violation of the terms of the Consent Judgment.
2. Defendants must comply with each and every term of the Consent Judgment within five (5) days of entry of this Order, including by filing with the Court and serving upon Plaintiffs' counsel within fifteen (15) days of entry of this Order a report in writing under oath setting forth in detail the manner and form in which Defendants have complied with the Consent Judgment. Such report shall also include a statement under oath by Defendants, in the form shown in Exhibit A, that (i) the information they have provided to Plaintiffs regarding the identity of entities and/or individuals through which they have sourced, obtained or acquired copies of non-U.S. versions of Plaintiffs' educational textbooks and copies of certain CD-roms included therein ("Plaintiffs' Works") is complete, truthful and accurate, (ii) they have provided copies of all documents evidencing all sources used by Defendants to acquire Plaintiffs' Works, or, if no documents exist, that no such documents exist, (iii) they have fully disclosed to Plaintiffs all web sites and other places where they have sold or through which they have sold Plaintiffs' Works into the United States and have ceased doing so, (iv) have fully disclosed and provided to Plaintiffs an accurate and complete accounting of their sales and profits since entry of the Consent Judgment, and (v) have fully disclosed and provided to Plaintiffs an accurate and complete accounting of their duplication of CD-roms and or other supplemental materials included with Plaintiffs' Works sold or offered for sale by Defendants.
3. Defendants shall pay Plaintiffs the sum of ninety thousand U.S. dollars ($90,000), as follows:
(a) The sum of fifty thousand U.S. dollars ($50,000) immediately upon Defendants' execution of this Consent Order, payable by certified check made out to the client trust account of Fross Zelnick Lehrman Zissu, P.C., 866 United Nations Plaza, New York, New York 10017, and delivered to Plaintiffs' attorney Georges Nahitchevansky, Fross Zelnick Lehrman Zissu, P.C., 866 United Nations Plaza, New York, New York 10017; and
(b) The sum of forty thousand U.S. dollars ($40,000) to be paid in four equal installments of ten thousand U.S. dollars ($10,000) payable on or before March 15, 2005, April 15, 2005, May 15, 2005 and June 15, 2005. Such aforementioned payments shall be payable by certified check made out to the client trust account of Fross Zelnick Lehrman Zissu, P.C., 866 United Nations Plaza, New York, New York 10017, and delivered to Plaintiffs' attorney Georges Nahitchevansky, Fross Zelnick Lehrman Zissu, P.C., 866 United Nations Plaza, New York, New York 10017.
4. Defendants, their employees, agents, licensees, attorneys, successors-in-title, affiliates, and assigns, and all those in active concert and participation with any of them, shall immediately and permanently cease and desist from infringing Plaintiffs' copyright rights in CD-roms or other auxiliary materials that accompany Plaintiffs' Works, and specifically from making, purchasing, distributing, acquiring or assisting others to purchase, make, distribute or acquire unauthorized copies of Plaintiffs' CD-roms or other auxiliary materials accompanying Plaintiffs' works.
5. From the date of the entry of this Order, Defendants shall use their commercially reasonable best efforts to identify and remove from any web sites that they own or operate, including at their web site at Halfvalue.com. sellers of Plaintiff's Works, and shall disclose to Plaintiffs the identify and contact information of all such sellers known to or identified by Defendants as well as the total volume of sales (by U.S. dollars, units and payment account information) made by such sellers of Plaintiffs' Works. Upon a request by Plaintiffs or their counsel. Defendants shall disclose, within fifteen (15) days of such request, the identity of, contact information of and sales information (by U.S. dollars, units and payment account information) related to any sellers on their web site(s) that sell Plaintiffs' Works into the United States or other jurisdictions outside of India. Further, Defendants shall (i) prominently post on their web sites, including at Halfvalue.com, a statement to the effect that they do not allow or permit sales of Plaintiffs' Works into the United States or other jurisdictions outside of India, and (2) within five (5) days after receipt of a request from Plaintiffs or their counsel, remove any seller and terminate the account of any seller that has sold or is offering for sale, on or through Defendants web site(s), Plaintiffs' Works in the United States or other jurisdiction outside India.
6. Defendants shall turn over to Plaintiffs, within fifteen (15) business days after the execution of this Agreement, any remaining non-US copies of Plaintiffs Works, including any CD-roms (masters or duplicates) or other supplemental materials provided therewith, under their control or possession.
7. If Defendants' report, as set forth in Paragraph 2 above, is not filed in full with this Court within fifteen (15) days after entry of this Order. Defendants shall pay Plaintiffs the additional sum of twenty thousand U.S. dollars ($20,000) by April 15, 2005, by certified check made out to the client trust account of Plaintiffs' counsel and sent to Plaintiffs' counsel at the address set forth above in Paragraph 3.(b). In addition, if within thirty (30) days after the entry of this Order, Plaintiffs have still not filed in full the report as set forth in Paragraph 2 above, Plaintiffs may obtain a Certification from the Clerk of the Court in the form annexed as Exhibit B, and may (i) provide a copy of such Certification with a copy of this Order to the Federal Marshals, who are authorized to seize all non-U.S. versions of Plaintiffs' textbooks from inside the premises of the various addresses used by Defendants to conduct their infringing sales, as well as any records of sales transactions and (ii) present a copy of the executed Certification in Exhibit A to this Court, who shall issue a warrant for the arrest of defendants Anjum Sehgal, Steven Seghal, Vijay Sehgal and Suman Sehgal based on contempt of court, as set forth in this Consent Order.
8. In the event Defendants' information regarding the identity of entities and/or individuals through which Defendants have sourced, obtained or acquired copies of non-U.S. versions of Plaintiffs' Works is shown by Plaintiffs by competent evidence to be materially false, incomplete or inaccurate. Plaintiffs' shall be awarded all of their costs, expenses, and attorneys fees incurred in investigating such, or twenty five thousand U.S. dollars ($25,000), whichever is higher, and the same shall be taxed by the Clerk against the Defendants jointly and severally.
9. In the event that Defendants fail to comply with any portion of this Order or in the future violate the Consent Judgment. Defendants shall pay Plaintiffs $1,000 per day for each day that they continue to violate the terms of the Consent Order and/or Consent Judgment.
10. This Court retains jurisdiction over this matter and the parties for purposes of enforcing the Consent Judgment, this Consent Order and resolving any disputes arising out of same.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed by their duly authorized representatives.