STATE OF FLORIDA OFFICE OF THE ATTORNEY GENERAL DEPARTMENT OF LEGAL AFFAIRS CASE NO. L ASSURANCE OF VOLUNTARY COMPLIANCE

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1 STATE OF FLORIDA OFFICE OF THE ATTORNEY GENERAL DEPARTMENT OF LEGAL AFFAIRS IN THE MATTER OF: BILL HEARD CHEVROLET CORPORATION-ORLANDO, d/b/a Bill Heard Chevrolet, a/k/a Bill Heard Enterprises ; and BILL HEARD CHEVROLET, INC. - PLANT CITY, d/b/a Bill Heard Chevrolet, a/k/a Bill Heard Enterprises Respondents. / CASE NO. L ASSURANCE OF VOLUNTARY COMPLIANCE PURSUANT TO Chapter 501, Part II, the Florida Deceptive and Unfair Trade Practices Act, and Section , Florida Statutes, the STATE OF FLORIDA, DEPARTMENT OF LEGAL AFFAIRS, OFFICE OF THE ATTORNEY GENERAL, (hereinafter the Department, ) caused an investigation to be made into certain advertising practices of BILL HEARD CHEVROLET CORPORATION-ORLANDO, d/b/a Bill Heard Chevrolet, a/k/a Bill Heard Enterprises, (hereinafter referred to as Bill Heard Orlando ); and BILL HEARD CHEVROLET, INC. - PLANT CITY, d/b/a Bill Heard Chevrolet, Bill Heard Chevrolet Plant City, a/k/a Bill Heard Enterprises, (hereinafter referred to as Bill Heard Plant City ), hereinafter collectively referred to as Respondents. Respondents are hereby entering into this Assurance of Voluntary Compliance (hereinafter AVC ) without an admission of wrongdoing and for the purpose of resolution of this matter with the Department, by and through undersigned Deputy Attorney General, which being in agreement, does in this matter accept this AVC in termination of this investigation, pursuant to Section (6), Florida Statutes, and by virtue of the authority vested in the Department by said statute. 1. DEFINITIONS For the purposes of this AVC, the following definitions shall apply: A. Advertising (including "advertisement," "advertise," and any version thereof) is any Page 1 of 17

2 message disseminated to the public, or any segment thereof, that promotes or is likely to promote, directly or indirectly, Respondents products or services, and includes, but is not limited to, messages conveyed visually, orally, or in writing: (1) in a newspaper, magazine, periodical, leaflet, flyer, brochure, circular, manual, poster, picture, illustration, drawing, invoice, estimate, contract, form, application, business card, letterhead, telefacsimile material, web cite, internet, pop-up, direct mail literature, telephone book, or any other written graphic, pictorial, illustrated, or printed material; (2) on any recording, radio, television, video, computer, public address system, by telephonic transmission, telex, facsimile, or telecopier transmission, or during any other transmission; (3) on any inside or outside sign or display, window display, or bulletin board; and (4) during any in-person appearance or otherwise during any in-person contact with the public or any segment thereof. B. Clear and "Conspicuous" (including "clearly" and "conspicuously") shall mean that a statement, representation, claim or term is readily noticeable and reasonably understandable. The following shall be considered in determining whether a statement, representation, claim or term is clear and conspicuous: (1) whether it is presented in a coherent and meaningful sequence with respect to other statements, representations, claims or terms being conveyed; (2) whether it is in close proximity to the statement, representation, claim or term it clarifies, modifies, explains, or to which it otherwise relates; (3) whether it is contradictory to any statement, representation, claim or term it purports to clarify, modify or explain, or is otherwise contradictory or confusing in relation to any other statement, representation, claim or term being conveyed to a reasonable person; (4) whether it is conveyed by means of an abbreviation and, if so, whether the abbreviation is commonly understood by the public, or approved by federal or state law; (5) whether it is legible; (6) whether it is of sufficient prominence in terms of print, size and contrast, as compared with accompanying statements, representations, claims or terms, so as to be readily noticeable and reasonably understandable; (7) whether it is at a decibel level and speed so as to be readily noticeable and reasonably understandable; and (8) whether it appears for a duration of time sufficient to allow a reasonable listener or viewer to have reasonable opportunity to notice, read and understand. C. The term Game Promotion shall mean, but is not limited to, a contest, game of chance, or gift enterprise, conducted within or throughout the state and other states in connection Page 2 of 17

3 with the sale of consumer products or services, and in which the elements of chance and prize are present. D. The term Material shall mean a statement, claim, term, act, practice, or representation that is likely to affect a consumer s choice or conduct regarding the purchase or lease of a good or service. E. The term Represent (including representation) shall mean to state or imply, orally or in writing, directly or indirectly, in substance or effect, whether by affirmative statements, implications or omissions. 2. RESPONDENTS 2.1 Respondent Bill Heard Orlando is an active for-profit Florida corporation with its principal address at 127 N Oregon Street, Sanford, FL Respondent Bill Heard Plant City is an active for-profit Florida corporation with its principal address at 2002 North Frontage Road, Plant City, FL Respondents engage in the business of advertising and selling automotive vehicles and automotive vehicle services within Florida to the general public. 2.4 Respondents, as part of their business practices, advertise vehicles for sale at specific prices and have the ability to send consumers to independent financing and credit services providers to assist their customers in purchasing Respondents vehicles and services. 2.5 Respondents operate dealerships for the sale of new Chevrolet motor vehicles and various used motor vehicles. 2.6 Respondents deny that Respondents or any of their affiliates have violated the laws of the State of Florida or any other jurisdiction and contend that their business practices are in accordance with all applicable state and federal requirements. 3. MATTERS INVESTIGATED 3.1 The Department initiated an investigation of Respondents and their affiliates in Page 3 of 17

4 connection with consumer complaints regarding unfair and deceptive business practices relating to the advertisement, sale, finance, and warranty of motor vehicles. 3.2 Matters investigated by the Department include, but are not limited to, the following allegations arising primarily from consumer complaints: (a) Allegations that Respondents fail to respond adequately or promptly to consumer complaints lodged by telephone, , and letters addressed to Respondents dealerships and corporate headquarters; (b) Allegations that Respondents advertise vehicles that are not available or not available for the advertised price; (c) Allegations that Respondents radio advertisements make promises of credit approval, including credit amnesty and approval wonderland, when in fact the dealership does not provide financing; (d) Allegations that Respondents travel to the homes of the financially unqualified consumers relatives to obtain signatures in order to secure financing; (e) Allegations that Respondents dealerships make misrepresentations regarding sale of vehicles by spot deliveries; (f) Allegations that Respondents fail to honor warranties and provide insufficient disclosure of the conditions to which warranties were given. (g) Allegations that Respondents advertise prices with rebates, for which it is next to impossible for any consumer to qualify because of inconsistent eligibility requirements and insufficient disclosure of the conditions for qualifying. (h) Allegations that Respondents applied General Motors employee pricing incentives to sales of vehicles for customers who were not eligible for or did not have Page 4 of 17

5 authorization to receive said pricing incentives The Department investigated Respondents advertising campaigns occurring in 2006, including, but not limited to, the Fantastic Fortune Cash Giveaway (August 2006), Scratch-off Extravaganza (April 2006), Sports Scratch-off Spectacular (July 2006), Scratch-off Spectacular (September 2006), Credit Amnesty (October 2006), and Walking in Approval Wonderland (December 2006). The Department investigated allegations of Respondents false, misleading and deceptive practices relating to these advertising campaigns, including, but not limited to the following: (a) False statements that consumers would win cash prizes when in fact the prize was a discount on the purchase of a vehicle with no cash value; (b) False statements that the offer of sale or discounts was based on the consumer s credit rating when in fact no credit checks were actually conducted; (c) (d) (e) (f) (g) False statements that the vehicles for sale were unclaimed, and seized ; False statements that vehicles were selling for up to 90% off their original prices; Misrepresentations of the amount of the cash prize that would be received; Failure to disclose restrictions and conditions in the promotions; False statements that the event was a forced liquidation sales when Respondents did not qualify for a liquidation sale pursuant to Section , Florida Statutes (2206); (h) False statements that consumers were pre-approved for credit lines or credit amnesty when Respondents do not extend credit and these statements were not based on actual credit checks. 3.4 As of July 6, 2007, Page 5 of 17

6 (a) Respondents do not provide any credit or financial products, there was no credit amnesty given by Respondents, there was no approval wonderland given by Respondents; (b) (c) (d) There were no forced liquidation sales by Respondents; There were no seized or unclaimed vehicles for sale by Respondents; While prizes were awarded in the form of discounts off the purchase price of vehicles, there were no cash prizes paid and no grand prizes paid in the advertisements dated April, July, and August, 2006; (e) No recipients of Respondents advertisements were known by Respondents to have superior credit or platinum credit prior to mailing; (f) A de minimis number of vehicles were offered for 90% off original price in the August, 2006 advertisements; (g) (h) All of Respondents dealerships use the same fictitious name Bill Heard Chevrolet; All of Respondents dealerships use the same wing shaped, American flag decorated emblem; (i) All of Respondents dealerships use the same corporate web cite, 4. COMPLIANCE 4.1 ADVERTISING PRACTICES AND PROCEDURES: Without admission of guilt, Respondents acknowledge and agree that they will observe the following policies and procedures regarding the purchase, development, production, review, and approval of advertising materials: (a) Respondents shall ensure that any future advertisements published by Respondents, or any advertisements published by any third party on behalf of Respondents, shall Page 6 of 17

7 Clearly and Conspicuously display all terms and conditions of such special offers, discounts, or sales. (b) Respondents shall not make false or misleading Representations in advertisements of Respondents vehicles for sale. To that end, Respondents: (1) Shall not Represent that credit is pre-approved or specially available without a credit check being conducted and without Clearly and Conspicuously disclosing all terms and conditions for obtaining credit; (2) Shall not Represent that credit amnesty is available to consumers; (3) Shall not Represent that credit is pre-approved for customers when no actual credit check has been done or determination of eligibility made; (4) Shall not advise consumers concerning their credit ratings, credit histories or pre-approval amounts when the advice is not based on actual credit checks or Beacon score checks; (5) Shall not advertise that vehicles for sale are unclaimed, seized or repossessed vehicles, unless Respondents comply with all legal requirements to conduct said aforementioned sale, including but not limited to compliance with Section , Florida Statutes (2007), regarding repossessed vehicles or liquidation sales; (6) Shall not advertise vehicles sold for up to 90% off their original price ; (7) Shall not advertise an unqualified liquidation event; and (8) Shall not advertise verified vehicles unless a warranty is provided; (c) In promoting sales with Game Promotions, all terms and conditions of the Game Promotion shall be Clearly and Conspicuously disclosed. All prizes shall be awarded to winners who qualify according to the disclosed terms and conditions. If a prize is designated as a grand prize it shall have a higher cash value than other listed prizes. Respondents shall not advertise cash prizes unless cash is to be awarded. Any advertisement which states there is a cash prize as opposed to a Page 7 of 17

8 discount on the purchase of a vehicle cannot be disclaimed by stating a cash prize has no cash value; and (d) Respondents shall honor all loan approval vouchers certificates, check facsimiles, and loan payment vouchers as set forth in the conditions stated in any advertisement. 4.2 Pertaining to Spot Deliveries, Respondents shall comply with The Truth in Lending Act (TILA). 15 U.S.C Respondents will not sell consumers trade-in vehicles or refuse to return consumers trade-ins before financing on that new sale has been approved and before the sale deal is finalized. Respondents shall not refuse to return a trade-in to a consumer until the consumer reimburses the dealer for the amount the dealer paid off the consumer s lender on the trade-in. Respondents pay off liens on trade-ins at their own risk where a vehicle sale is contingent on financing being approved. Paying off the lien does not provide a basis to retain possession of the trade-in. 4.3 To ensure that all advertising and vehicle sales, including spot delivery sales, will be compliant with this AVC and all applicable laws and regulations, within 30 days of the Effective Date of this Agreement, Respondents shall conduct mandatory biannual educational seminars for all of Respondents employees, and those of other Heard entities in Florida, who engage in advertising and vehicle sales activities. Educational seminars shall cover the requirements of this AVC and applicable laws and regulations related to advertising and the sale of motor vehicles, including but not limited to spot deliveries. 4.4 Respondents shall establish policies designed to hold accountable employees who are responsible for advertising and the sale of motor vehicles for failure to ensure compliance with the applicable laws and regulations. 4.5 Respondents shall designate a compliance officer and such officer shall obtain pre-publication, legal review and approval of all advertising materials to ensure compliance with this AVC and all applicable laws and regulations. 4.6 Within 30 days of the execution of this Agreement Respondents shall take appropriate Page 8 of 17

9 action to sanction all employees who, Respondents have determined after diligent inquiry, directly participated in the use of personal identity information without authority, to obtain the benefit of sales of vehicles in which General Motors employee pricing incentives were used for customers who were not eligible for or did not have authorization to receive said pricing incentives. Within 45 days of the execution of this Agreement, Respondents will provide the Department with a list of the number of employees who were sanctioned in accordance with this requirement. Upon request of the Department, Respondents will provide the Department with all information related to the aforementioned requirements. 4.7 Within 30 days of the execution of this Agreement, Respondents shall implement new procedures for authenticating the use of personal identity information, to obtain the benefit of using General Motors employee pricing incentives in the sale of vehicles, including but not limited to the following: (i) For each sale of a vehicle using General Motors employee pricing incentives Respondents are required to obtain an original signed acknowledgment form from the General Motors employee prior to effectuating the sale. This acknowledgment form must be kept part of the permanent vehicle sale documents. (ii) For each sale of a vehicle using General Motors employee pricing incentives it is required that the customer acknowledge, review and sign a form explaining the eligibility requirements and rules associated with the program. (iii) For each sale of a vehicle using General Motors employee pricing incentives it is required that the customer signs an acknowledgment that the customer is participating in a General Motors employee pricing incentive program. 4.8 FUTURE COMPLIANCE: Page 9 of 17

10 Respondents agree to comply with the following acts and practices: (a) Chapter 501, Part II, Florida Statutes, (2007), Florida's Deceptive and Unfair Trade Practices Act; (b) (c) Section (21), Florida Statutes, (2007), advertising repossessions: Section , Florida Statutes, (2007), unfair dealer practices, dealer fees, warranties and repossessed vehicles; (d) (e) (f) (g) (h) (i) (j) (k) (l) Section , Florida Statutes, (2007), altered goods sale; Section , Florida Statutes, (2007), communications fraud; Section , Florida Statutes, (2007), misleading advertising; Section , Florida Statutes, (2007), (prize) free gift advertising; Section , Florida Statutes, (2007), game promotions; Section , Florida Statutes, (2007), illegal lotteries; 39 U.S.C. 3001(k), (2007), nonmailable matter, sweepstakes; 39 U.S.C. 3005, (2007), the postal lottery law; and 15 U.S.C. 1601, The Truth in Lending Act (TILA). 4.9 Respondents will not effect any change in the form of doing business or organizational identity as a method of avoiding the terms set forth in this AVC Respondents shall make the substantive terms and conditions of this Agreement known to those persons associated with Respondents who are responsible for implementing the obligations set forth in this AVC RESOLUTION OF CONSUMER COMPLAINTS: Respondents shall resolve within forty-five (45) days of receipt, consumer complaints forwarded by the Florida Attorney General's Office or any complaints sent directly to Respondents. Respondents shall maintain all consumer complaints and all responses thereto, for a period of three (3) years after receipt of such complaints. Page 10 of 17

11 4.12 RECORD-KEEPING PROVISIONS AND RIGHT TO INSPECT: The Department shall have the right to inspect and review the records and documents listed, in order to monitor compliance with this AVC and compliance with Florida and federal laws. Respondents, their successors, assignees, officers, agents, servants, and employees, whether acting directly or through any corporation, subsidiary, division, or other device, for a period of four (4) years from the Effective Date of this AVC, while engaging in conduct related to the subject matter of this AVC, shall retain the following records: (a) Complaints and refund requests (whether received directly, indirectly or through any third party) and any response to those complaints. (b) Copies of sale scripts, training materials, all advertisements, website printouts, and all other marketing materials. (c) Records and documents necessary to demonstrate full compliance with each provision of this AVC. 5. NO GOVERNMENTAL APPROVAL OF MARKETING PRACTICES: This AVC shall not be construed as an approval by the Department of Respondents past, present, or future conduct or business practices, and this AVC does not in any way limit the right to bring legal action against Respondents for any conduct which violates state laws. 6. MONETARY TERMS 6.1 Respondents shall pay the sum of two hundred thousand dollars, ($200,000.00), pursuant to Section , Florida Statutes, (2007), for investigative and attorney s fees and costs of this matter and for costs associated with ongoing and future enforcement initiatives pursuant to Chapter 501 Part II, Florida Statutes (2007). Payments shall be made in six installments with the first payment of thirty-four thousand dollars ($34,000.00) due November 20, 2007, the second installment payment of thirty-three thousand two hundred dollars ($33,200.00) due December 20, 2007, the third installment payment of thirty-three thousand two Page 11 of 17

12 hundred dollars ($33,200.00) due January 20, 2008, the fourth installment payment of thirtythree thousand two hundred dollars ($33,200.00) due February 20, 2008, the fifth installment payment of thirty-three thousand two hundred dollars ($33,200.00) due March 20, 2008, and the sixth and final payment of thirty-three thousand two hundred dollars ($33,200.00) due April 20, Payment shall be made by cashiers check or other certified funds made payable to the Office of the Attorney General, Department of Legal Affairs Revolving Trust Fund, and shall be sent by certified mail to Elizabeth J. Starr, Senior Assistant Attorney General, Office of the Attorney General, 135 West Central Blvd., Ste. 1000, Orlando Florida Additionally, Respondents shall contribute two hundred thousand dollars ($200,000.00) to the Seniors vs. Crime project for educational, investigative, and crime prevention programs for the benefit of the senior citizens and the community as a whole. Payments to the Seniors vs. Crime project shall be made in six installment payments with the first payment of thirty-four thousand dollars ($34,000.00) due within two days of the partial execution of this AVC, the second installment payment of thirty-three thousand two hundred dollars ($33,200.00) due December 1, 2007, the third installment payment of thirty-three thousand two hundred dollars ($33,200.00) due January 1, 2008, the fourth installment payment of thirty-three thousand two hundred dollars ($33,200.00) due February 1, 2008, the fifth installment payment of thirty-three thousand two hundred dollars ($33,200.00) due March 1, 2008, and the sixth and final installment payment of thirty-three thousand two hundred dollars ($33,200.00) due April 1, Payment shall be made by cashiers check or other certified funds made payable to the Seniors v. Crimes, Incorporated, and shall be sent by certified mail to Elizabeth J. Starr, Senior Assistant Attorney General, Office of the Attorney General, 135 West Central Blvd., Ste. 1000, Orlando Florida Confirmation of payments shall be delivered to Elizabeth J. Starr, Senior Assistant Attorney General, Office of the Attorney General, 135 West Central Blvd., Suite 1000, Orlando, FL 32801, within 5 days of the effective Page 12 of 17

13 date. 6.3 Upon receipt of the partially executed AVC, Elizabeth J. Starr will sign the AVC and then forward it to the Deputy Attorney General. Should the Deputy Attorney General or authorized designee decline to authorize and execute this AVC, then, any Settlement Funds will be promptly returned. 7. EFFECTIVE DATE This AVC shall become effective upon its execution by all persons whose signatures appear below. This document may be signed in counterparts. 8. ACCEPTANCE The Deputy Attorney General, may refuse to accept this AVC at his discretion. The receipt of or deposit by the Department of any monies pursuant to this AVC does not constitute acceptance by said Department. 9. NO PENALTIES In consideration for the fulfillment of the various compliance and monetary obligations set forth above, no penalties are to be imposed under this AVC. On the basis of the Assurance of Voluntary Compliance, and the consideration recited herein, the Office of the Attorney General agrees to take no action against Respondents with respect to the issues which were investigated by the Department of Legal Affairs, or which are recited in this Assurance of Voluntary Compliance, and which occurred prior to November 7, However, the Attorney General reserves the right to seek Chapter 501 penalties for any future violation(s) of the compliance terms contained within this agreement. Florida Statutes (2007) Additionally, the Attorney General reserves the right to seek attorney s fees and costs upon default, or upon any future noncompliance. 10. PRESERVATION OF PRIVATE CLAIMS Nothing herein shall be construed as waiver or limit of any rights, causes of action, or Page 13 of 17

14 remedies of any persons or entities who are not parties to this AVC with respect to any of the matters contained herein. 11. CONSTRUCTION The parties jointly participated in the negotiation of the terms which are articulated within this AVC. No provision of this AVC shall be construed for or against either party on the grounds that one party was more heavily involved in the preparation of the AVC. 12. CHANGE IN LAW If the statutes and/or administrative rules referred to in this AVC change due to amendment, repeal or disposition by the legislature, an agency, or a court, so that they would permit any action prohibited by any section of this AVC, that section shall no longer have any force or effect. 13. APPLICABILITY This AVC shall apply to and bind Respondents and their respective successors and assigns, officers, agents, servants, and employees, whether acting directly or through any corporation, subsidiary, division, or other device. 14. TIME IS OF THE ESSENCE Time is of the essence in performance of all terms and conditions of this agreement. (Signatures follow) Page 14 of 17

15 IN WITNESS WHEREOF, Respondent BILL HEARD CHEVROLET CORPORATION-ORLANDO, d/b/a Bill Heard Chevrolet, a/k/a Bill Heard Enterprises, has caused this AVC to be executed by an authorized representative, as a true act and deed, in the County and State listed below, as of the date affixed thereon. BY MY SIGNATURE I,, hereby affirm that I am acting in my capacity and within my authority as of Respondent, BILL HEARD CHEVROLET CORPORATION-ORLANDO, d/b/a Bill Heard Chevrolet, a/k/a Bill Heard Enterprises. This day of, 2007 By: Title: for BILL HEARD CHEVROLET CORPORATION-ORLANDO, d/b/a Bill Heard Chevrolet, a/k/a Bill Heard Enterprises. STATE OF ) COUNTY OF ) BEFORE ME, this day of, 2007, an officer duly authorized to take acknowledgments in the State of, personally appeared, who acknowledged before me that he/she executed the foregoing instrument for the purposes therein stated, on behalf of Respondent, BILL HEARD CHEVROLET CORPORATION-ORLANDO, d/b/a Bill Heard Chevrolet, a/k/a Bill Heard Enterprises. NOTARY PUBLIC (print, type or stamp commissioned name of Notary Public) Personally known or Produced Type of Identification Produced: Identification (check one) Page 15 of 17

16 IN WITNESS WHEREOF, Respondent BILL HEARD CHEVROLET, INC. - PLANT CITY d/b/a Bill Heard Chevrolet, a/k/a Bill Heard Enterprises, has caused this AVC to be executed by an authorized representative, as a true act and deed, in the County and State listed below, as of the date affixed thereon. BY MY SIGNATURE I,, hereby affirm that I am acting in my capacity and within my authority as of Respondent, BILL HEARD CHEVROLET, INC. - PLANT CITY, d/b/a Bill Heard Chevrolet a/k/a Bill Heard Enterprises. This day of, By: Title: for BILL HEARD CHEVROLET, INC. - PLANT CITY, d/b/a Bill Heard Chevrolet, a/k/a Bill Heard Enterprises. STATE OF ) COUNTY OF ) BEFORE ME, this day of, 2007, an officer duly authorized to take acknowledgments in the State of, personally appeared, who acknowledged before me that he/she executed the foregoing instrument for the purposes therein stated, on behalf of Respondent, BILL HEARD CHEVROLET, INC. - PLANT CITY, d/b/a Bill Heard Chevrolet, a/k/a Bill Heard Enterprises. NOTARY PUBLIC (print, type or stamp commissioned name of Notary Public) Personally known or Produced Identification (check one) Type of Identification Produced: OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS Page 16 of 17

17 Signed this day of, Elizabeth J. Starr Senior Assistant Attorney General Office of the Attorney General Department of Legal Affairs 135 West Central Blvd., Suite 1000 Orlando, Florida (407) phone, (407) Fax Accepted this day of, Signed this day of, DEPUTY ATTORNEY GENERAL Office of the Attorney General The Capitol Tallahassee, Florida END- Page 17 of 17