                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA


                                     )
UNITED STATES OF AMERICA,            )
                                     )
                  Plaintiff,         )
                                     ) Civil Action No. 10-1362 (EGS)
             v.                      )
                                     )
DANIEL CHAPTER ONE,                  )
                                     )
                  and                )
                                     )
JAMES FEIJO,                         )
                                     )
                  Defendants.        )
                                     )

                             MEMORANDUM OPINION

     Plaintiff United States brings this action against Daniel

Chapter One and James Feijo (“Defendants”) under Sections 5(l),

13(b), and 16(a) of the Federal Trade Commission Act, 15 U.S.C.

§§ 45(l), 53(b), and 56(a), alleging that Defendants have

violated a final cease and desist order of the Federal Trade

Commission (“FTC” or the “Commission”).       Pending before the

Court is the United States’ Motion for Summary Judgment on

Liability.    The United States requests that the Court find that

Defendants have violated the FTC’s order and accordingly are

liable for civil penalties, injunctive relief, and consumer

redress.   Upon consideration of the motion, the opposition and

reply thereto, the relevant case law, and the entire record in
this case, the Court will GRANT the United States’ Motion for

Summary Judgment on Liability.

I.     BACKGROUND1

       Defendant Daniel Chapter One is incorporated under the laws

of the State of Washington, with its principal place of business

in Portsmouth, Rhode Island.        See Pl.’s SMF ¶ 1.   Defendant

James Feijo is the sole member and overseer of Daniel Chapter

One.       Pl.’s SMF ¶ 2.   Defendants advertise and sell dietary

supplements, including BioShark, 7 Herb Formula, GDU, and

BioMixx (the “Products”), which Defendants claim can treat,

cure, or prevent cancer.       Pl.’s SMF ¶¶ 3-4.

       A.      Procedural Background

       On September 18, 2008, the FTC initiated an administrative

proceeding alleging that Defendants’ marketing of the Products

constituted deceptive acts and practices in violation of

Sections 5(a) and 12 of the Federal Trade Commission Act (the

“FTC Act”), 15 U.S.C. §§ 45(a) and 52.       Pl.’s SMF ¶¶ 4-5.

Following a trial, an administrative law judge concluded that

Defendants had violated the FTC Act by making unsubstantiated

claims that the Products prevented, treated, or cured tumors or

cancer.      Pl.’s SMF ¶ 6.   Defendants appealed this decision to


       1
       The facts are substantially derived from Plaintiff’s
Statement of Material Facts Not in Genuine Dispute (hereinafter,
“Pl.’s SMF”); these facts are undisputed, unless otherwise
indicated.

                                       2
the Commission, and on December 24, 2009, the Commission upheld

the decision and issued a Final Order to cease and desist

certain practices.   Pl.’s SMF ¶¶ 7-8.

     On January 25, 2010, the FTC issued a Modified Final Order,

copies of which were served on Defendants and their attorneys on

January 29, January 30, and February 1, 2010.   Pl.’s SMF ¶¶ 9-

10; see also Pl.’s Mem. in Supp. of Mot. for Summ. J. on

Liability (hereinafter, “Pl.’s MSJ”), Exs. D and V.   Part II of

the Modified Final Order prohibits Defendants (referred to in

the Modified Final Order as “Respondents”) from making “any

representation, in any manner, expressly or by implication,

including through the use of product or program names or

endorsements”2 that any product marketed by Defendants:

     [P]revents, treats, or cures or assists in the prevention,
     treatment, or cure of any type of tumor or cancer,
     including but not limited to representations that:
          1. BioShark inhibits tumor growth;
          2. BioShark is effective in the treatment of cancer;
          3. 7 Herb Formula is effective in the treatment or
             cure of cancer;
          4. 7 Herb Formula inhibits tumor formation;
          5. GDU eliminates tumors;
          6. GDU is effective in the treatment of cancer;
          7. BioMixx is effective in the treatment of cancer; or
          8. BioMixx heals the destructive effects of radiation

     2
       The Modified Final Order states that the term
“endorsement” shall be defined as in 16 C.F.R. § 255.0(b), which
states that “an endorsement means any advertising message . . .
that consumers are likely to believe reflects the opinions,
beliefs, findings, or experiences of a party other than the
sponsoring advertiser, even if the views expressed by that party
are identical to those of the sponsoring advertiser.” 16 C.F.R.
§ 255.0(b).

                                 3
             or chemotherapy;
     unless the representation is true, non-misleading, and, at
     the time it is made, Respondents possess and rely upon
     competent and reliable scientific evidence that
     substantiates the representation.

Pl.’s SMF ¶ 11; see also Pl.’s MSJ, Ex. D, at 2.   In addition,

Part V.B of the Modified Final Order requires that:

     Within forty-five (45) days after the final and effective
     date of this order, Respondents shall send by first class
     mail, postage prepaid, an exact copy of the notice . . . to
     all persons [who purchased the Products between January 1,
     2005 and the date of the order.]

Pl.’s SMF ¶ 12; see also Pl.’s MSJ, Ex. D, at 3.   The notice,

which is attached to the Modified Final Order, informs consumers

of the FTC’s conclusion that Defendants’ advertising claims were

deceptive because they were not substantiated by competent and

reliable scientific evidence.   See Pl.’s MSJ, Ex. D, at 7.

     Defendants filed an appeal with the United States Court of

Appeals for the District of Columbia Circuit, contesting the

legality and constitutionality of the Modified Final Order.      See

Pl.’s SMF ¶ 13; Petition for Review, Daniel Chapter One v. FTC,

No. 10-1064 (D.C. Cir. Mar. 17, 2010).   Defendants also applied

to the FTC for a stay of the Modified Final Order pending the

outcome of their appeal, but their request was denied.   Pl.’s

SMF ¶ 14.   Defendants then filed with the D.C. Circuit an

emergency motion for a stay of the Modified Final Order.     This

motion was denied on April 1, 2010.   See Per Curiam Order

Denying Emergency Motion to Stay Case, Daniel Chapter One, No.

                                 4
10-1064 (D.C. Cir. Apr. 1, 2010); see also Pl.’s MSJ, Ex. F.

Because Defendants failed to obtain a stay, the Modified Final

Order became effective on April 2, 2010.   See Pl.’s MSJ at 4;

see also 15 U.S.C. § 45(g)(2) (“An order of the Commission to

cease and desist shall become final . . . upon the sixtieth day

after such order is served, if a petition for review has been

duly filed; except that any such order may be stayed, in whole

or in part and subject to such conditions as may be appropriate,

by -- (A) the Commission; (B) an appropriate court of appeals of

the United States . . . ; or (C) the Supreme Court, if an

applicable petition for certiorari is pending.”).

     On August 13, 2010, the United States filed its Complaint

in this Court seeking civil penalties and other injunctive

relief pursuant to §§ 5(l), 13(b), and 16(a) of the FTC Act.

Simultaneous therewith, the United States filed a Motion for a

Preliminary Injunction seeking an order enjoining Defendants

from violating the Modified Final Order.   Pl.’s SMF ¶ 16.   The

Court denied the United States’ Motion for a Preliminary

Injunction without prejudice on September 14, 2010, finding that

the Court lacked jurisdiction to enforce the Modified Final

Order while Defendants’ appeal challenging the legality of the

Modified Final Order was pending before the D.C. Circuit.     See




                                5
Order, Sept. 14, 2010, Docket No. 11.3   The FTC then filed an

emergency motion for an order of enforcement pendente lite with

the D.C. Circuit.   The Circuit granted the United States’ motion

on November 22, 2010.   See Per Curiam Order, Daniel Chapter One,

No. 10-1064 (D.C. Cir. Nov. 22, 2010) (“Daniel Chapter One is

hereby enjoined to obey forthwith the modified final order of

the Federal Trade Commission issued January 25, 2010, in Docket

No. 9329, In the Matter of Daniel Chapter One and James

Feijo.”); see also Pl.’s SMF ¶ 17.   Defendants then filed a

motion with the D.C. Circuit seeking a stay of the enforcement

of Part V.B of the Modified Final Order.   The D.C. Circuit

rejected this request on December 7, 2010.   See Per Curiam

Order, Daniel Chapter One, No. 10-1064 (D.C. Cir. Dec. 7, 2010);

Pl.’s SMF ¶ 18.




     3
       The Court also denied Defendants’ Motion to Dismiss,
concluding that the United States’ penalty suit was properly
before the Court. See 15 U.S.C. § 45(l) (permitting the
Attorney General of the United States to file an action to
recover civil penalties against “[a]ny person, partnership, or
corporation who violates an order of the Commission after it has
become final, and while such order is in effect”); see also
United States v. Standard Educ. Soc’y, 55 F. Supp. 189, 193
(N.D. Ill. 1943) (“The Circuit Court of Appeals is vested with
exclusive jurisdiction to enforce the Commission’s cease and
desist orders under Section 5(d), but that court has no
jurisdiction over penalty suits. . . . Continuance of the
enforcement proceedings in the Circuit Court of Appeals appears
to be no bar to the commencement of a penalty suit, if, prior to
the commencement of the suit, the Commission’s order . . . has
become final . . . .”).

                                 6
        On December 10, 2010, the D.C. Circuit denied Defendants’

petition for review of the Modified Final Order, concluding that

“the Commission properly exercised jurisdiction over [Daniel

Chapter One],” and that “[Daniel Chapter One]’s arguments based

upon the Constitution and the Religious Freedom Restoration Act

are wholly without merit.”     Daniel Chapter One v. FTC, 405 F.

App’x 505, 505-06 (D.C. Cir. 2010).    Defendants then filed a

petition for a writ of certiorari, which was denied on May 23,

2011.     See Daniel Chapter One v. FTC, No. 10-1292, 131 S. Ct.

2917 (2011).

        Following issuance of the D.C. Circuit’s mandate, the

United States renewed its Motion for a Preliminary Injunction in

this Court.    In addition, Defendants filed a Motion to Stay the

proceedings pending completion of a federal criminal

investigation, and disposition of any resulting indictments and

prosecutions, of James Feijo and Daniel Chapter One in the State

of Rhode Island.     See Defs.’ Mot. to Stay, Docket No. 22.    The

Court denied Defendants’ Motion to Stay without prejudice during

a hearing held on May 9, 2011.    On June 22, 2011, the Court

granted the United States’ Motion for Preliminary Injunction and

enjoined Defendants from violating the FTC’s Modified Final

Order.     See Order and Memorandum Opinion, Docket Nos. 31 and 32.

        On July 29, 2011, the United States filed a Motion for an

Order to Show Cause why Daniel Chapter One, James Feijo, and

                                   7
Patricia Feijo4 should not be held in contempt of the Court’s

June 22, 2011 Order.   The Court subsequently ordered Defendants

to show cause why they should not be held in contempt.   The

Court held a contempt hearing on May 9, 2012.   During that

hearing, the United States presented evidence and testimony

regarding Defendants’ purported violations of the Modified Final

Order.   After receiving evidence and hearing argument, the Court

found Daniel Chapter One, James Feijo, and Patricia Feijo in

civil contempt.   Specifically, the Court concluded that James

Feijo, Patricia Feijo, and Daniel Chapter One (the “Contemnors”)

had continued to violate the Modified Final Order by

(1) continuing to make representations on their radio show that


     4
       Although Patricia Feijo is not a defendant in this action,
the United States argued that she was bound by the preliminary
injunction pursuant to Federal Rule of Civil Procedure 65(d)(2),
which provides that a preliminary injunction binds:

     (A)   the parties;
     (B)   the parties’ officers, agents, servants, employees,
           and attorneys; and
     (C)   other persons who are in active concert or
           participation with anyone described in Rule
           65(d)(2)(A) or (B) as long as those individuals
           “receive actual notice of it by personal service or
           otherwise[.]”

Fed. R. Civ. P. 65(d)(2). The United States argued that
Patricia Feijo received actual notice of the Order and that she
was “in active concert or participation” with James Feijo and
Daniel Chapter One. See Pl.’s Mem. of Law in Supp. of Mot. for
Order to Show Cause at 11. Defendants also do not dispute that
Patricia Feijo is an agent, representative, or employee of
Daniel Chapter One. See Pl.’s SMF ¶ 50; Defs.’ Statement of
Genuine Issues ¶ 50, Docket No. 42-2.

                                 8
their products treat or cure cancer without competent and

reliable scientific evidence to substantiate those

representations, (2) encouraging potential customers to visit

websites containing Daniel Chapter One publications that contain

prohibited information and endorsements of the prohibited

supplements, (3) not removing certain representations from the

websites within their control, which Contemnors conceded

included www.danielchapterone.com, www.dc1ministry.com, and

www.dc1freedom.com, and (4) failing to mail the required notice

to all consumers who purchased the Products between January 1,

2005, and April 2, 2010.5   The Court allowed the Contemnors two

weeks to attempt to purge the contempt and scheduled another

hearing in order to determine whether or not the contempt had

been purged.

     On May 22, 2012, James Feijo submitted a certification of

compliance with the Court’s Order.   In that certification, Mr.

Feijo stated that all notices had been sent out in compliance

with the Court’s order; that prohibited representations had been

removed from www.dc1freedom.com, www.danielchapterone.com, the

dc1 online store, and www.dc1ministry.com; that Contemnors had

ceased answering health questions on their radio show or


     5
       Because neither party has requested an official transcript
of the May 9, 2012 contempt hearing, the Court relies on its own
notes and recollections, as well as draft versions of the
hearing transcript.

                                 9
inviting other callers to answer questions; and that Contemnors

were not mentioning other people’s websites containing Daniel

Chapter One information.    See James Feijo’s Certification of

Compliance at 2-4, Docket No. 51.     At a subsequent hearing on

May 23, 2012, the United States presented additional evidence

that Contemnors had not purged the contempt, but the Court gave

Contemnors until May 24, 2012 at 3:30 p.m. to make a showing to

the Court sufficient to demonstrate their compliance with the

Court’s Order.    On May 24, 2012, Defendants filed a Supplemental

Certification of Compliance with the Court’s Order, and the

United States filed a Notice of Failure to Purge.     See Defs.’

Supplemental Certification of Compliance with Order, Docket No.

52; Pl.’s Notice of Failure to Purge, Docket No. 53.    The Court

determined that Contemnors had taken sufficient actions to purge

themselves of contempt, and therefore the Court vacated its

Contempt Order.   Minute Order, May 24, 2012.

     On September 30, 2011, the United States filed a Motion for

Summary Judgment on Liability.   That motion is ripe for

determination by the Court.

     B.   Violations of the Modified Final Order

     The United States alleges that Defendants have made

prohibited representations on their radio show and on websites

within their control without possessing competent and reliable

scientific evidence.

                                 10
            1.   Websites

     According to the United States, from April 2, 2010 through

June 6, 2011, Defendants controlled the website

www.dc1freedom.com/guilty-of-healing-cancer.   Pl.’s SMF ¶ 21.

That website contained textual content asserting that Daniel

Chapter One had healed people of cancer, specifically, the web

page was titled “Guilty of Healing Cancer” and it stated,

“Daniel Chapter One World Ministry for Jesus Christ found guilty

of healing people of cancer!”    Pl.’s SMF ¶¶ 22-24; see also

Pl.’s MSJ, Ex. K.   The United States also alleges that

Defendants and their associates have established online forums

and groups where treatment advice is provided.    For example, the

United States contends -- and Defendants dispute -- that Daniel

Chapter One controlled and had administrative privileges over

the content on the online forum http://dc1fellowship.com.   Pl.’s

SMF ¶ 25.   That forum contains a post requesting information

about treating throat cancer.    In response, a user named David

states: “[t]o help in healing cancer, we believe the Lord has

provided the following products,” and then David provided dosing

information for 7 Herb Formula, Bio Shark, and GDU.   The post by

David is dated July 16, 2010, and it appeared on the website

http://dc1fellowship.com/forum/viewtopic.php?f=1&t=291 from July

16, 2010 through June 6, 2011.   Pl.’s SMF ¶¶ 26-27; see also

Pl.’s MSJ, Ex. L.   Additionally, the United States alleges --

                                 11
and Defendants dispute -- that Defendants controlled and had

administrative privileges to remove the content on the website

http://healthfellowship.org.   Pl.’s SMF ¶ 28.   That website

contains a forum post requesting advice about treating

pancreatic cancer, along with a response from the user David on

September 21, 2010, stating, “[f]or cancer, we believe the Lord

has provided the following products to help with healing,” and

listing dosing information for 7 Herb Formula, Bio Shark, and

GDU.   Pl.’s SMF ¶¶ 29-30; see also Pl.’s MSJ, Ex. M.

       Finally, the United States asserts -- and Defendants

dispute -- that Defendants controlled the content published on

http://health.groups.yahoo.com/group/danielchapterone/files/

(the “Yahoo Group”).   Pl.’s SMF ¶ 31.   As discussed in more

detail infra, Section I.B.2., the Yahoo Group has also been

promoted on Defendants’ radio show.   The Yahoo Group contains

several Daniel Chapter One publications that can be downloaded,

including “The Most Simple Guide to the Most Difficult Diseases”

(the “Guidebook”) and a publication titled “Cancer Newsletter,

Millennium Edition, 2002” (the “Cancer Newsletter”).     See Pl.’s

MSJ, Ex. N.   The Guidebook was available on the Daniel Chapter

One Yahoo Group from January 2, 2011 through June 6, 2011.

Pl.’s SMF ¶ 33.   The “Introduction” to the Guidebook states that

it contains “protocols we used successfully,” and that “[m]any

have testified that these basic protocols are effective, when

                                 12
adhered to as part of an overall health plan.”    Pl.'s SMF ¶ 34;

see also Pl.’s MSJ, Ex. O.   A page within the Guidebook titled

“CANCER” lists 7 Herb Formula, Bio Shark, BioMixx, and GDU Caps

as “the most essential products” for treating cancer.    Pl.’s SMF

¶ 35; see also Pl.’s MSJ, Ex. P.     The Cancer Newsletter was also

available on the Daniel Chapter One Yahoo Group from January 10,

2011 through June 6, 2011.   This publication contains

information about using Defendants’ products to treat and cure

cancer, as well as stories about individuals who have allegedly

used Daniel Chapter One products successfully to treat cancer.

For example, the Cancer Newsletter states, “Daniel Chapter One

GDU Caps contain[] proteolytic enzymes that metabolize protein

and can aid the body in breaking down a tumor[,]” “7 Herb

Formula helps battle cancer[,]” “[BioMixx] is used to assist the

body in fighting cancer and in healing the destructive effects

of radiation and chemotherapy treatments.”    Pl.’s SMF ¶¶ 36-37;

see also Pl.’s MSJ, Ex. Q.

          2.   Radio Show

     In addition, Defendants provide information on their radio

show about using their products to treat or cure cancer, and

they solicit endorsements from others by encouraging listeners

to call the show and answer health questions.    The United States

asserts that Defendants controlled the audio content published

on http://feeds.thepodzone.com/dc1hw from April 2, 2010 through

                                13
June 6, 2011.    Pl.’s SMF ¶ 38.   This website contains recordings

of Defendants’ past radio shows.        The United States has also

preserved recordings of these shows on CD and filed them with

the Court.    For example, in a show broadcast on May 27, 2010,

Defendants had the following conversation with a caller named

Phil:

        PHIL: I’ve been diagnosed with Stage 4 lung cancer with
        lymph node involvement and I had a brain tumor, which they
        did gamma knife surgery on and that resolved that.
        JAMES FEIJO: Yeah.
        PHIL: But it’s gotten into the central lymph nodes. I have
        a reoccurring tumor in the left lung and two smaller tumors
        in the right lung. What would be -- what would be -- you
        know, what would work for that? Is there anything that you
        have that would [inaudible]?
        JAMES FEIJO: Well, did they tell you they’ve never had a
        successful -- they’ve never had a person survive lung
        cancer with their treatments?
        PHIL: Pretty much. Pretty much that’s what the doctor said.
        JAMES FEIJO: Yeah.
        PATRICIA FEIJO: Yeah.
        PHIL: He suggested chemo starting next week.
        JAMES FEIJO: Yeah, that’s a waste of time.
        PATRICIA FEIJO: Well, yeah, the most recent studies that we
        have looked at, they actually had come to the conclusion
        that the chemotherapy and radiation for lung cancer doesn’t
        extend life, it does the opposite.
        JAMES FEIJO: We really need to have somebody call in right
        now. This is --
        PATRICIA FEIJO: Yeah, we can’t tell you, Phil --
        JAMES FEIJO: -- very important.
        PATRICIA FEIJO: -- what we would do only because we’re
        under a cease and desist order right now from the FTC.
        It’s quite an evil order. But it’s prohibiting us from
        free speech right now.

Pl.’s SMF ¶ 41; see also Pl.’s MSJ, Ex. R, at 14:35-15:42.

James Feijo went on to state: “You know, Phil, there’s so many

people, I give you this statement here -- many, many people, we

                                   14
have, in just two months we gathered about eight inches high of

affidavits of people with all types of cancers and illnesses

that were supposed to be dead, who were told that they had

nothing that could be done for them.   They’re still alive,

they’re free of their cancers. . . . We do have someone calling

in with an answer for you.”   Pl.’s MSJ, Ex. R, at 15:55-16:30.

Later, with the caller Phil still on the line, Defendants

accepted a call from a caller named Bob, who discussed what

Defendants’ products had done for his family, and then stated:

     BOB: Since you’re in advanced stage -- that’s what it
     sounds like.
     PHIL: Stage 4.
     BOB: Yep.
     JAMES FEIJO: Yeah.
     BOB: Okay, yeah, that’s advanced. All right. Right now
     first thing, 7 Herb Formula. You want to do a half to
     three-quarters of a bottle for the first three to four
     days.
     PHIL: One-half to three-quarters --
     JAMES FEIJO: Yeah, don’t worry about writing it down, Phil.
     The producer’s going to be writing it down and give it to
     you later. So, we’ll just let Bob share it with you, okay?
     PHIL: Oh, okay. Okay, all right.
     JAMES FEIJO: Yeah.
     BOB: Okay. And then after this, Phil, do about four ounces
     four times a day for about two weeks.
     PHIL: Uh-huh.
     BOB: After that four ounces a day, until -- until you’re
     cured.
     PHIL: Okay.
     BOB: The second item would be GDU. That’s for inflammation
     and pain you might be having. I’d do three to six capsules
     three times a day. But you have to do them a half-hour
     before meals.
     PHIL: Mm-hmm, okay.
     BOB: One other thing, since, like I said, it’s in your
     lungs and your lymph nodes and you have tumors, I’d get on
     the BioShark. I’d do at least four -- four capsules three

                                15
     times a day with meals. And one other thing, it’s very
     important, what they told my cousin, Bob, also, was to do -
     - get the BioMixx and do about four to five scoops, like I
     say, in soy milk, two times a day.
     JAMES FEIJO: Are you losing weight there, Phil, at all or--
     PHIL: I’ve probably lost seven or eight, maybe ten pounds.
     JAMES FEIJO: And how about the energy level here?
     PHIL: It’s decreased.
     JAMES FEIJO: Okay. If there’s no BioMixx because of the
     government, 1st Kings would be great and you can do four or
     five scoops of that, two to three times a day in place of
     meals, you know.

Pl.’s SMF ¶ 41; see also Pl.’s MSJ, Ex. R, at 19:25-21:20.

Later in the broadcast, James Feijo stated:

     JAMES FEIJO: Phil, what Bob’s saying is what we see quite
     often. People will start doing the guidelines that Bob
     just mentioned. They’ll be doing great, they’ll be doing
     terrific. We’ve seen it I can’t tell you how many times,
     Phil. Well, we don’t know if God’s going to use this to
     heal you or not. We don’t know God’s will, you know?
     PHIL: Exactly.
     JAMES FEIJO: We know -- we know that as soon as you -- see,
     let me share one thing. The suggestions Bob just gave you,
     Phil, everybody listening, are suggestions to boost God’s
     order that he has given us, our immune system, to fight the
     disease state of any situation. Okay?

Pl.’s SMF ¶ 41; see also Pl.’s MSJ, Ex. R, at 22:54-23:34.

Subsequently, the radio show took another call, and a caller

named Doug provided information about 7 Herb Formula and

BioShark.   Pl.’s MSJ, Ex. R, at 28:20-29:17.   In response to

Doug’s comments about BioShark, James Feijo stated:

     JAMES FEIJO: I’ll share an interesting thing with you all
     concerning the issue of the BioShark. We had a gentleman
     come in. He had Gulf War -- not Gulf War, he was Agent
     Orange exposed. They gave him -- they put him on Hospice.
     Four years ago, he was supposed to die and his tumor
     starting shrinking using the advice that you’ve been given
     here or are being given, too. And then he came in and he

                                16
     said, oh, I went back and they said -- they showed a little
     enlargement. So, I asked him what was going on. He said,
     well, I -- I was doing so well, I cut back on the BioShark.
     So, it’s interesting that he had that kind of response.
     But it is about blood supply, you see?
     PHIL: Right.
     JAMES FEIJO: And, so -- my wife’s worried that -- you know,
     this is --
     PATRICIA FEIJO: Well, I want to --
     JAMES FEIJO: See, this is the problem with the Nazis that
     we’re -- yes, Trish!
     DOUG: Well, that’s what I would have told him. I mean, I
     didn’t know about the Gulf War guy, but shutting the blood
     supply off to the tumor is really a very important thing.

Pl.’s SMF ¶ 41; see also Pl.’s MSJ, Ex. R, at 29:18-30:26.     At

the end of this conversation, James Feijo instructed Phil to

join the online fellowship, and Patricia Feijo told him that “if

you want to just order product, you can do that at the 800

number or online.”   Pl.’s SMF ¶ 41; see also Pl.’s MSJ, Ex. R,

at 40:04-40:34.   James Feijo’s wife, Patricia Feijo, then

provided the full phone number for individuals to call and

stated, “you can get 7 Herb Formula. You can get GDU or BioShark

for yourself or a loved one.”   Pl.’s MSJ, Ex. R, at 41:26-41:38.

     During another radio show broadcast on May 28, 2010, James

and Patricia Feijo had the following discussion with a caller:

     PATRICIA FEIJO: How can we help you?
     MARCIA: Well, my mom was just diagnosed with cancer.
     PATRICIA FEIJO: Yeah.
     JAMES FEIJO: Yeah. What type, honey?
     MARCIA: Huh?
     JAMES FEIJO: What type of cancer?
     MARCIA: Pancreatic.
     JAMES FEIJO: Oh, my. And what did they say? What did the
     doctors tell her?
     MARCIA: Well, they --

                                17
     JAMES FEIJO: Pretty advanced or what did they say?
     MARCIA: Well, right now, I’m supposed to find out Tuesday,
     JAMES FEIJO: Mm-hmm.
     MARCIA: -- of what stage it’s at --
     JAMES FEIJO: Mm-hmm.
     MARCIA: -- and if it’s operable or, you know, what kind of
     tumor it is and, if she can, to get chemo or radiation.
     JAMES FEIJO: Yeah. Well, let me tell you right off the bat,
     chemo’s a lie, radiation’s a lie. They’ve never cured
     anybody of pancreatic cancer with their chemo and
     radiation.
     PATRICIA FEIJO: No, there was a Dr. Kelley. I have his
     little book in my office. And he healed his own pancreatic
     cancer. Now, Jim --
     JAMES FEIJO: So, there are options out there.
     PATRICIA FEIJO: He healed himself naturally. And he begins
     his little book with, it was a blessing in disguise that I
     didn’t have health insurance and couldn’t go for chemo or
     radiation.
     MARCIA: Mm-hmm.
     PATRICIA FEIJO: But I just wanted to explain to you,
     Marcia, that we’re under a cease and desist order. So, Jim
     and Trish at Daniel Chapter One and the other people here,
     MARCIA: Mm-hmm.
     PATRICIA FEIJO: -- can’t tell you what Dr. Kelly did or
     what we have done over the years.
     MARCIA: Uh-huh.
     PATRICIA FEIJO: But, hopefully, someone will call in and --
     because they’ve heard you now and will call in and help you
     out with the kind of things naturally that your mom could
     do. And the other thing is you can join our fellowship and
     get -- or your mom can directly and get fellowship that
     way, get ministry rather.
     MARCIA: Mm-hmm.
     PATRICIA FEIJO: Some health ministry.
     JAMES FEIJO: So, we’re going to ask someone to give us a
     call right now. The other thing is, Marcia, you can go to
     DanielChapterOneFreedom.com.
     MARCIA: Mm-hmm.
     JAMES FEIJO: And you can join the DC1 fellowship and people
     from all over the country are helping each other, okay?

Pl.’s SMF ¶ 44; see also Pl.’s MSJ, Ex. S, at 9:15-11:20.   With

Marcia still on the line, James and Patricia Feijo accepted a

call from a caller named Troy:

                                 18
JAMES FEIJO: Can you share with Marcia what she can try to
start for her dad?
PATRICIA FEIJO: Mom.
MARCIA: Mom.
JAMES FEIJO: Mom, rather. And, Marcia, by the way, the
producer will be writing it down, okay?
MARCIA: Okay, thank you.
TROY: Okay, Marcia, here it goes, I’ll give you two.
MARCIA: Mm-hmm.
TROY: Two of their prize products are BioShark and the
ever-present 7-Herb Formula.
MARCIA: 7-Herb Formula and BioShark, okay.
TROY: That’s two of them right there.
MARCIA: Okay. And I believe my husband went in to Daniel
Chapter One this morning, as a matter of fact.
JAMES FEIJO: Oh, yeah?
PATRICIA FEIJO: Oh.
MARCIA: And --
JAMES FEIJO: Oh, yes.
MARCIA: Mm-hmm. And he went and bought some.
JAMES FEIJO: Oh, so you got -- you got the 7-Herb?
MARCIA: Yep.
JAMES FEIJO: Oh, okay, all right. And then did he get
anything else, too? Did he get the BioShark that Troy
mentioned?
MARCIA: I believe -- yes, I believe he got the BioShark and
he got some kind of a -- it used to be the AM and PM drink.
JAMES FEIJO: Yes, it’s 1st Kings now or ENDO-24.
MARCIA: Mm-hmm.
PATRICIA FEIJO: Yeah. Is your mom having a hard time
eating, Marcia?
MARCIA: Yes, she is.
PATRICIA FEIJO: Okay, yeah, that’s great that he got that
then.
TROY: And another one is TPB.
MARCIA: Okay. What is that?
. . .
TROY: No, Trish’s Special Blend -- Perfect Blend. Trish’s
Perfect Blend, the one we call TPB.
MARCIA: TPB?
PATRICIA FEIJO: Yeah, the TPB. But what was it your
husband got, the ENDO or the 1st Kings?
MARCIA: He got the -- I think he got the one that has more
protein and vitamins.
. . .
PATRICIA FEIJO: Just so you know, that’s interchangeable
for the most part.

                          19
     MARCIA: Okay.
     PATRICIA FEIJO: So, that’s good if he got the ENDO-24.
     MARCIA: Mm-hmm.
     PATRICIA FEIJO: That’s awesome then.
     JAMES FEIJO: Well, that’s awesome.
     PATRICIA FEIJO: She can get started and, again, you can
     join the fellowship for more ministry. She can join the
     fellowship directly if she’d like. Thanks so much, Troy.
     JAMES FEIJO: And by the way, that ENDO-24, three heaping
     scoops three, four times a day is better than food for her
     right now.
     MARCIA: Yeah, exactly.
     JAMES FEIJO: And please don’t hesitate -- now, Marcia, if
     you go and join the fellowship, then more people can offer
     you more help. This way, Troy, who just called in, was a
     big help.

Pl.’s SMF ¶ 44; see also Pl.’s MSJ, Ex. S, at 11:45-14:20.

     During a radio broadcast on February 14, 2011, James Feijo

stated: “[y]ou know, our voice has been hindered by the evil of

our government. We can’t even give true testimony, signed

affidavits of people who’ve cured or healed of cancer.     Satan is

alive and well in the FDA and the FTC and in Washington.”     Pl.’s

SMF ¶ 46; see also Pl.’s MSJ, Ex. T, at 14:15-14:30.      Later,

James Feijo accepted a call from a caller named Greg, who

informed listeners how to find and join the Daniel Chapter One

Yahoo Group.   See Pl.’s SMF ¶ 47; Pl.’s MSJ, Ex. T, at 24:13-

24:40.   James Feijo told Greg to “[t]ell them what the

publications are on there -- awesome list, man[,]” and Greg

responded by listing several available publications, including

“we’ve got the BioGuide, we’ve got the Most Simple Guide[.]”

Pl.’s MSJ, Ex. T, at 24:40-25:05.    James Feijo then told


                                20
listeners that “there’s another site too, besides the Yahoo

Group” and Greg responded, “yeah and that’s, health, health,

let’s see, healthfellowship.org[.]”    Pl.’s SMF ¶ 47; see also

Pl.’s MSJ, Ex. T, at 25:40-25:53.

     During a radio show broadcast on February 22, 2011,

Defendants accepted a call from a caller named Patricia, who

stated that her doctor had found a mass on her breast.     See

Pl.’s SMF ¶ 49; Pl.’s MSJ, Ex. U, at 7:20-7:45.   James and

Patricia Feijo instructed the caller not to get a biopsy, and

Patricia Feijo stated that “if it is cancer, it can stir up the

cells and can get them to spread[.]”   Pl.’s SMF ¶ 49; Pl.’s MSJ,

Ex. U, at 8:38-9:44.   Patricia Feijo told the caller that she

should take products “to treat it worst case scenario.”     Id.

Defendants then asked someone to call in to help answer the

caller’s questions, and accepted a call from a caller named

Greg, who said that, for “cancer . . . one thing I would add is

BioShark to that.”    Pl.’s SMF ¶ 49; Pl.’s MSJ, Ex. U, at 22:35-

22:46.   Patricia Feijo confirmed this suggestion, stating,

“yeah, definitely.”    Id.

     Finally, during a radio show broadcast on June 23, 2011,

the Feijos took a call from an individual who identified himself

as Curtis, and who said that his daughter had cancer.     See Pl.’s

Mot. for Order to Show Cause, Ex. A, at 30:00-30:45.    James

Feijo advised Curtis to go online and read the testimonies on

                                 21
the Daniel Chapter One website to learn more, and stated that

they support “God’s way” of treating cancer through the use of 7

Herb Formula, BioShark, and GDU.      Id. at 30:45-34:15.   In

addition, James Feijo told Curtis that “the government is trying

to stop us from helping you and your daughter . . . they want to

not let us tell you about 7 Herb Formula, BioShark, and GDU,

that God has given us to help people around the world.”          Id. at

37:00-38:05.   Patricia Feijo added:

     [W]e do care about your daughter . . . we just heard from
     our lawyer that a judge ruled in favor of the Trade
     Commission, and so, you know, basically we can be fined out
     of existence tonight or, or, put into prison, and we want
     people to know the reality that we’re sitting here, willing
     to risk even our lives, to serve the lord and to serve you,
     right, but the situation is such that I would say get the
     product while you can, even stock up while you can, and if
     one day you won’t be able to get our products then just,
     you know, try to continue to follow pretty much what those
     products are, the herbs, the enzymes, because that’s what
     we have seen work for many years.

Id. at 38:05-39:00.   James Feijo then gave Curtis information on

how to order the products, and directed Curtis to the

healthfellowship.org website for more information.      Id. at

39:00-40:00.   At other times during this same show, James Feijo

stated that Daniel Chapter One’s products, including GDU, were

created and intended by God “for you, for your health and

healing, as a prevention, to mitigate, to treat, to heal, to

cure.”   Id. at 8:30-9:40.   Patricia Feijo told listeners that

they did not share their experiences with the products “until we


                                 22
had used it for a while and saw that it did indeed work, and

then we began to share with people, hey, this is what works for

this and that.”     Id. at 23:10-23:30.    Patricia Feijo stated that

the testimonies the Feijos had received from their customers and

placed on their website and in their BioGuide were a sampling of

their customers’ experiences and that the results in the

testimonials were “very typical of what people experience.”          Id.

at 23:40-24:35.    James and Patricia Feijo went on to describe

how 7-Herb Formula had cured a man who had renal cancer.       See

id. at 24:35-26:45.

          3.      Competent and Reliable Scientific Evidence

     According to the United States -- but as disputed by

Defendants -- at the time the above representations were made,

Defendants did not possess or rely upon competent scientific

evidence, as defined in Part I.A of the Modified Final Order,6

that substantiated the representations.       See Pl.’s SMF ¶ 51.

          4.      Failure to Mail Notice

     Finally, the parties do not dispute that Defendants have

failed to send the notice described in Part V.B of the Modified



     6
       The Modified Final Order defines “competent and reliable
scientific evidence” as “tests, analyses, research, studies, or
other evidence based on the expertise of professionals in the
relevant area, that has been conducted and evaluated in an
objective manner by persons qualified to do so, using procedures
generally accepted in the profession to yield accurate and
reliable results.” Pl.’s MSJ, Ex. D, at 1.

                                  23
Final Order.    See Pl.’s SMF ¶ 52; Defs.’ Statement of Genuine

Issues ¶ 52.

II.    LEGAL STANDARDS

       A.   Summary Judgment Pursuant to Rule 56

       Summary judgment should be granted only if the moving party

has shown that there are no genuine issues of material fact and

that the moving party is entitled to judgment as a matter of

law.    See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986).    “A fact is material if it ‘might affect

the outcome of the suit under the governing law,’ and a dispute

about a material fact is genuine ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving

party.’”    Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)).    The moving party bears the initial burden of

demonstrating the absence of genuine issues of material fact.

See Celotex, 477 U.S. at 323.    In determining whether a genuine

issue of material facts exists, the Court must view all facts in

the light most favorable to the non-moving party.    See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986); Keyes v. Dist. of Columbia, 372 F.3d 434, 436 (D.C.

Cir. 2004).    The party opposing a motion for summary judgment

“may not rest upon the mere allegations or denials of his




                                 24
pleading, but . . . must set forth specific facts showing that

there is a genuine issue for trial.”   Anderson, 477 U.S. at 248.

     B.   Sections 5(l) and 13(b) of the FTC Act7

     Section 5(l) of the FTC Act, regarding penalties for

violations of orders, injunctions, and other appropriate

equitable relief, provides:

     Any person, partnership, or corporation who violates an
     order of the Commission after it has become final, and
     while such order is in effect, shall forfeit and pay to the
     United States a civil penalty of not more than $ 10,000 for
     each violation, which shall accrue to the United States and
     may be recovered in a civil action brought by the Attorney
     General of the United States. Each separate violation of
     such an order shall be a separate offense, except that in
     the case of a violation through continuing failure to obey
     or neglect to obey a final order of the Commission, each
     day of continuance of such failure or neglect shall be
     deemed a separate offense. In such actions, the United
     States district courts are empowered to grant mandatory
     injunctions and such other and further equitable relief as
     they deem appropriate in the enforcement of such final
     orders of the Commission.

15 U.S.C. § 45(l).

     Section 13(b) of the Act states, in relevant part:

     Whenever the Commission has reason to believe
        (1) that any person, partnership, or corporation is
        violating, or is about to violate, any provision of law
        enforced by the Federal Trade Commission, and
        (2) that the enjoining thereof pending the issuance of a
        complaint by the Commission and until such complaint is
        dismissed by the Commission or set aside by the court on
        review, or until the order of the Commission made


     7
       The United States also brings this action pursuant to
Section 16(a) of the FTC Act, 15 U.S.C. § 56(a). That provision
sets forth the procedures for the exercise of the Commission’s
and the Attorney General’s authority to litigate.

                               25
        thereon has become final, would be in the interest of
        the public
     the Commission by any of its attorneys designated by it for
     such purpose may bring suit in a district court of the
     United States to enjoin any such act or practice. Upon a
     proper showing that . . . such action would be in the
     public interest, and after notice to the defendant, a
     temporary restraining order or a preliminary injunction may
     be granted without bond . . . . [I]n proper cases the
     Commission may seek, and after proper proof, the court may
     issue, a permanent injunction.

15 U.S.C. § 53(b).

     The FTC Act entrusts the administration of the Act to the

FTC as “a body of experts.”     FTC v. Morton Salt Co., 334 U.S.

37, 54 (1948).   “The enforcement responsibility of the courts,

once a Commission order has become final . . . is to adjudicate

questions concerning the order’s violation, not questions of

fact which support that valid order.”     Id. (internal citations

omitted); see also United States v. H. M. Prince Textiles, Inc.,

262 F. Supp. 383, 388 (S.D.N.Y. 1966) (“[I]t is well settled

that a defendant cannot attack a final cease and desist order in

a subsequent enforcement proceeding.”); United States v.

Vitasafe Corp., 212 F. Supp. 397, 398 (S.D.N.Y. 1962) (same).

In an action by the government to recover civil penalties “[a]ll

that the government need prove is that a cease and desist order

has in fact been violated[.]”     H. M. Prince Textiles, 262 F.

Supp. at 388.




                                  26
III. ANALYSIS

     In response to the United States’ Motion for Summary

Judgment, Defendants argue -- without setting forth their own

specific facts in response -- that six issues of material fact

bar summary judgment at this stage.   Specifically, Defendants

dispute that:

     1.   Defendants controlled the content published on the
          website http://www.dc1freedom.com/guilty-of-healing-
          cancer from April 2, 2010 through June 6, 2011;
     2.   Defendants controlled the content published on the
          website
          http://dc1fellowship.com/forum/viewtopic.php?f=1&t=291
          and had administrative privileges to remove content
          published on this website from April 2, 2010 through
          June 6, 2011;
     3.   Defendants controlled the content published on
          http://healthfellowship.org/thread-313.html and had
          administrative privileges to remove content published
          on this website from April 2, 2010 to June 6, 2011;
     4.   Defendants controlled the content published on the
          website
          http://health.groups.yahoo.com/group/danielchapterone/
          files/ and had the administrative privileges to remove
          content published on this website from April 2, 2010
          through June 6, 2011;
     5.   Defendants controlled the audio content published on
          the Daniel Chapter One Healthwatch feed,
          http://feeds.thepodzone.com/dc1hw, from April 2, 2010
          through June 6, 2011;
     6.   At the time the representations on Defendants’
          websites and radio shows were made, Defendants did not
          possess or rely upon competent and reliable scientific
          evidence, as defined in Part I.A of the Modified Final
          Order, that substantiated the representations.




                               27
See Defs.’ Opp’n to Pl.’s MSJ at 6-10; Defs.’ Statement of

Genuine Issues ¶¶ 21, 25, 28, 31, 38, and 51.8

     However, Defendants admitted three of these issues during

the contempt hearings in this case and in their subsequent

certifications filed with the Court.      In particular, Defendants

admitted that they control the content published on

www.dc1freedom.com (disputed issue 1),9 and that they control the

audio content published on the Daniel Chapter One Healthwatch

feed (disputed issue 5).10      See James Feijo’s Certification of

Compliance with Order at ¶¶ 7, 16, Docket No. 51.       In addition,

by conceding that they had violated Part II of the Modified

Final Order, Defendants conceded that, at the time

representations on these websites and radio shows were made,

     8
       Both in their Opposition and during the contempt hearing,
Defendants conceded that they had not mailed the notice required
in Part V.B of the Modified Final Order. See Defs.’ Statement
of Genuine Issues ¶ 52. Subsequent to the contempt hearing,
Defendants certified that they had mailed the notice, as of May
18, 2012. See James Feijo’s Certification of Compliance with
Order, Docket No. 51. Defendants’ failure to mail the notice
between April 2, 2010 and May 18, 2012 constitutes a violation
of the Modified Final Order for which Defendants are liable.
Accordingly, the Court will GRANT as conceded the United States’
Motion for Summary Judgment on Liability as to Count II (Failure
to Mail Notice).
     9
       Defendants also admitted that they control the content
published on www.danielchapterone.com and www.dc1ministry.com.
     10
            The Daniel Chapter One Healthwatch feed was also
previously accessible through www.danielchapterone.com, which
Defendants admitted at the hearing that they controlled. See
Pl.’s Reply at 4.
 

                                    28
Defendants did not possess or rely upon competent and reliable

scientific evidence to substantiate those representations

(disputed issue 6).   See id. at ¶ 1 (“We have ceased from making

prohibited representations, as described in Part II of the

Modified Final Order, on our radio show and on any websites that

are within our control.   We have ceased from directing potential

customers to websites that are not in our control but which

contain prohibited representations, as described in Part II of

the Modified Final Order.   We have worked diligently to remove

the prohibited representations, as described in Part II of the

Modified Final Order, from the websites within our control.”).11


     11
        In addition, Defendants would be collaterally estopped
from arguing in this proceeding that they possess and rely upon
competent and reliable scientific evidence. “[O]nce a court has
decided an issue of fact or law necessary to its judgment, that
decision may preclude relitigation of the issue in a suit on a
difference cause of action involving a party to the first case.”
Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C.
Cir. 1992) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)).
A prior holding has preclusive effect when (1) the same issue
being raised was contested by the parties and submitted for
judicial determination in the prior case; (2) the issue was
actually and necessarily determined by a court of competent
jurisdiction in that prior case; and (3) preclusion in the
second case would not work a basic unfairness to the party bound
by the first determination. See Yamaha, 961 F.2d at 254 (citing
McLaughlin v. Bradlee, 803 F.2d 1197, 1201 (D.C. Cir. 1986);
Restatement (Second) of Judgments § 27 (1982)). The Supreme
Court has held that judgments of administrative agencies should
be given preclusive effect if the agency was acting in a
judicial capacity, such as in cases where the agency provides a
full and fair opportunity to litigate the claim. See Univ. of
Tenn. v. Elliott, 478 U.S. 788, 797-98 (1986. The products and
representations at issue in this action are identical to the
products and representations that the FTC considered. The

                                29
     With respect to the other three disputed issues, Defendants

affirmatively denied that they control the content published on

http://dc1fellowship.com, http://healthfellowship.org, and

http://health.groups.yahoo.com/group/danielchapterone (the Yahoo

Group) (disputed issues 2, 3, and 4).   Defendants admitted,

however, that they directed callers to these websites.   See

James Feijo’s Certification of Compliance with Order at ¶ 13.

Moreover, the excerpts of radio broadcasts from May 28, 2010 and

February 14, 2011 provide independent evidence that James Feijo

directed listeners to all three of these websites, which is a

separate violation of the Modified Final Order.   In particular,

Part II of the Modified Final Order specifies that Defendants,

“directly or through any corporation, partnership, subsidiary,


administrative law judge in the FTC action determined that
Defendants did not possess or rely upon competent and reliable
scientific evidence to substantiate their claims that the
Products treated or cured cancer. This issue was actually and
necessarily determined by the FTC, and indeed, the Court of
Appeals reviewed and affirmed that determination. See Daniel
Chapter One, 405 F. App’x at 506 (“Because it is undisputed
[Daniel Chapter One] did not support its claims with ‘competent
and reliable scientific evidence’ including clinical trials with
human subjects, the Commission properly concluded [Daniel
Chapter One’s] advertisements were deceptive for want of a
reasonable basis.”). Finally, the Court finds that applying
collateral estoppel in this case would not work a basic
unfairness to Defendants because they were able to fully present
their arguments in the proceeding before the Commission and the
D.C. Circuit regarding these same issues. See, e.g., Morgan v.
FAA, 657 F. Supp. 2d 146, 153 (D.D.C. 2009) (applying issue
preclusion where Merit Systems Protection Board determined the
same issues and that ruling was affirmed by the Federal
Circuit).
      

                               30
division, trade name, or other device,” are barred from making

certain representations about the Products.       Pl.’s MSJ, Ex. D,

at 2.        By referring to and directing listeners to these websites

during their radio broadcasts, Defendants were using the

websites as a “device” through which they were able to convey

the prohibited representations.

        Even if Defendants’ act of directing listeners to the

remaining three websites did not constitute a violation of the

Modified Final Order, these issues are not material to the

conclusion that Defendants violated the Modified Final Order.12

At the contempt hearing, the Court concluded that there was

clear and convincing evidence that Defendants had violated Part

II of the Modified Final Order by (1) continuing to make

representations on their radio show that their products treat or

cure cancer without competent and reliable scientific evidence

to substantiate those representations, (2) encouraging potential

customers to visit websites containing Daniel Chapter One

publications that contain prohibited information and

endorsements of the prohibited supplements, and (3) not removing

certain representations from the websites within their control,

which Defendants conceded included www.danielchapterone.com,

www.dc1ministry.com, and www.dc1freedom.com.        See Order Holding


        12
       The Court therefore need not draw an adverse inference
from Defendants’ invocation of the Fifth Amendment.

                                     31
Daniel Chapter One, James Feijo and Patricia Feijo in Civil

Contempt at 2-3, Docket No. 50.    Notably, Defendants nowhere

dispute that the representations made on these websites and

their radio shows constituted violations of the Modified Final

Order.

     Indeed, the examples provided by the United States only

further support the conclusion that Defendants violated the

Modified Final Order.   For example, during the May 27, 2010

radio broadcast, James Feijo made representations that BioShark

was an effective treatment to shrink tumors.   Pl.’s SMF ¶ 41;

see also Pl.’s MSJ, Ex. R.   In addition, Defendants accepted

calls from other individuals who recommended using the Products

to treat stage 4 lung cancer, and Defendants affirmed those

recommendations.   See, e.g., Pl.’s SMF ¶ 41; see also Pl.’s MSJ,

Ex. R, at 22:54-23:34 (“JAMES FEIJO: . . . see, let me share one

thing.   The suggestions Bob just gave you, Phil, everybody

listening, are suggestions to boost God’s order that he has

given us, our immune system, to fight the disease state of any

situation.”).   James Feijo’s statements unquestionably violated

Part II of the Modified Final Order.   In addition, the advice

provided by other callers regarding the use of the Products

constituted “endorsements,” as prohibited by the Modified Final

Order, because listeners were likely to believe that the

information provided “reflects the opinions, beliefs, findings,

                                  32
or experiences of a party other than the sponsoring advertiser,

even if the views expressed by that party are identical to those

of the sponsoring advertiser.”    16 C.F.R. § 255.0(b).

Similarly, during the May 28, 2010 broadcast, Defendants

encouraged a caller to provide advice about using the Products

to treat pancreatic cancer, and Defendants affirmed and

contributed to that advice.     See Pl.’s SMF ¶ 44; see also Pl.’s

MSJ, Ex. S, at 9:15-14:20.    These representations and

endorsements violated Part II of the Modified Final Order.

Additionally, the June 23, 2011 radio broadcast contained

numerous representations in violation of Part II of the Modified

Final Order, including James Feijo’s statement that Defendants

support “God’s way of treating cancer through the use of 7 Herb

Formula, BioShark, and GDU.”    Pl.’s Mot. for Order to Show

Cause, Ex. A, at 30:45-34:15.

     Therefore, the Court concludes that the record is replete

with evidence that Defendants have violated the Modified Final

Order.   The FTC Act authorizes awards of monetary civil

penalties, mandatory injunctive relief, and other equitable

relief for violations of final orders of the Commission.       See 15

U.S.C. §§ 45(l), 53(b).   Accordingly, there is no genuine issue

as to any material fact and the United States is entitled to

judgment as a matter of law on liability as to Counts I

(Prohibited Representations) and II (Failure to Mail Notice).

                                  33
IV.   CONCLUSION

      For the foregoing reasons, the United States’ Motion for

Summary Judgment on Liability is hereby GRANTED.   The Court will

direct the parties to file recommendations for further

proceedings, including a proposed briefing schedule, if

applicable, regarding the appropriate penalty or penalties.   A

separate Order accompanies this Memorandum Opinion.

SIGNED:   Emmet G. Sullivan
          United States District Judge
          September 24, 2012




                                34
