COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPERIOR COURT DEPARTMENT

14-1957 p

COMMONWEALTH OF MASSACHUSETTS,

Plaintiff,

v.

TOMMY-CAR MANAGEMENT CORP.,

TOMMY-CAR CORP.,

TOMMY CAR ADVERTISING INC.,

T & C AUTO CORP d/b/a NORTHAMPTON

VOLKSWAGEN, COUNTRY HYUNDAI INC

d/b/a COUNTRY HYUNDAI,

PATRIOT BUICK GMC, INC. d/b/a PATRIOT

BUICK GMC, CARTA COSENZI individually

and d/b/a COUNTRY NISSAN, and

THOMAS COSENZI,

Defendants.

ASSURANCE OF DISCONTINUANCE PURSUANT TO G. L. c. 93A. 8 5

I. Introduction

Pursuant to the provisions of Massachusetts General Laws c. 93 A, the Commonwealth of

Massachusetts, by its Attorney General Martha CoaMey, has conducted an investigation into

Tommy-Car Management Corp., Tommy-Car Corp., Tommy Car Advertising Inc., T & C Auto

Corp d/b/a Northampton Volkswagen, Country Hyundai Inc. d/b/a Country Hyundai, Patriot

Buick GMC, Inc. d/b/a Patriot Buick GMC, Carla Cosenzi individually and d/b/a Country

Nissan, and Thomas Cosenzi's (collectively "Defendants") advertising practices. Based on that

investigation, the Attorney General alleges that Defendants have violated the Massachusetts

Consumer Protection Act, G. L. c. 93 A, § 2. The Attorney General and Defendants conferred in

good faith and determined to resolve the investigation on the terms set forth in this Assurance of

Discontinuance (the "Assurance").

II. Background

1. Tommy-Car Management Corp. is a Massachusetts domestic profit corporation

with a principal place of business at 40 Russell Street, Hadley, MA 01035.

2. Tommy-Car Corp. is a Massachusetts domestic profit corporation with a principal

place of business at 40 Russell Street, Hadley, MA 01035.

3. Tommy Car Advertising Inc. is a Massachusetts domestic profit corporation with

a principal place of business at 104 Sturbridge Road, Charlton, MA 01507.

4. T & C Auto Corp, formerly Northampton Volkswagen Inc. and d/b/a

Northampton Volkswagen, is a Massachusetts domestic profit corporation with a principal place

of business at 48 Damon Road, Northampton, MA 01060.

5. Country Hyundai Inc. d/b/a Country Hyundai is a Massachusetts domestic profit

corporation with a principal place of business at 347 King Street, Northampton, MA 01060.

6. Patriot Buick GMC, Inc. d/b/a Patriot Buick GMC is a Massachusetts domestic

profit corporation with a principal place of business at 104 Sturbridge Road, Charlton, MA

01507.

7. Carla Cosenzi is a natural person residing at 64 Redfem Drive, Longmeadow, MA

01106. In the most recent filings on record in the Commonwealth's corporate database, Carla

Cosenzi is listed as the President as well as a Director for each of the defendant corporations.

She is also listed as the Treasurer for each of the defendant corporations except Tommy-Car

Management Corp. and the Secretary for each of the defendant corporations except for Tommy

Car Advertising Inc. Additionally, the business certificate on file with the Town of Hadley states

that Carla Cosenzi conducts business as Country Nissan at 40 Russell Street, Hadley, MA 01035.

8. Thomas Cosenzi is a natural person residing at 1436 Morgan Road, West

Springfield, MA 01089. In the most recent filings on record in the Commonwealth's corporate

database, Thomas Cosenzi is listed as a Director of each of the defendant corporations as well as

the Vice President of T & C Auto Corp and the Treasurer of Tommy-Car Management Corp.

9. The Attorney General's Office received complaints from individuals regarding

Defendants' advertising and marketing practices and initiated an investigation of Defendants'

advertising and marketing practices.

10. The Attorney General's Office alleges that Defendants engaged in the following

unfair or deceptive acts or practices, in violation of G. L. c. 93A, § 2:

a. advertising prices for motor vehicles that did not include all necessary or usual

charges, such as freight, handling, vehicle preparation, and documentary

preparation (see 940 Code Mass. Regs. § 5.02(3));

b. refusing to sell motor vehicles in accordance with advertised terms or conditions

(see 940 Code Mass. Regs. § 5.02(6));

c. advertising sales or promotions for motor vehicles without clearly and

conspicuously disclosing the expiration dates as well as any other conditions (see

940 Code Mass. Regs. § 5.02(8));

d. making statements in advertisements for the sale of motor vehicles that they knew

or should have known were false and/or misleading (see 940 Code Mass. Regs.

§ 5.02(9));

e. offering a specific price for trade-in vehicles in advertisements and failing to pay

said price for all trade-in vehicles or clearly and conspicuously disclosing any

conditions that trade-in vehicles must have met for Defendants to pay the

advertised price (see 940 Code Mass. Regs. § 5.02(11)); and

f. advertising that a range of prices would be paid for trade-in vehicles without

clearly and conspicuously disclosing the criteria which would be used to

determine any amount paid for trade-in vehicles (see 940 Code Mass. Regs.

§ 5.02(12)).

11. The Attorney General's Office further alleges that Defendants' pattern of

advertising suggests that they were engaged in bait and switch methods—Defendants published

advertisements meant to entice consumers into their showrooms with sales and promotions that

were not actually available.

12. Defendants deny any allegations that they have violated the Massachusetts

Consumer Protection Act, G. L. c. 93 A, § 2, and do not admit to any wrongdoing or liability.

This Assurance of Discontinuance does not constitute an admission by Defendants nor is it

evidence of any act of non-compliance with any state or federal law, rule, or regulation. No

findings are made that Defendants have committed any violations of the Consumer Protection

Act or any regulations thereunder.

HI. Assurances

13. Definitions for the purposes of Section III:

a. "Asterisk Pricing" is the advertising of a prominently-displayed, artificially-low

price for a vehicle ("prominent price"), where the material terms and conditions

that must be met to receive the advertised price are listed in small print separate

from the prominent price and include a "Cash or Trade" reduction, excepting

however, the charges set forth in 940 Code Mass. Regs. § 5.02(3).

b. "Reduction List Pricing" is the prominent display in an advertisement of a vehicle

price where the prominently displayed price is reached after a series of reductions,

typically including rebates, "cash or trade" entries, and dealer and factory

discounts, and where the series of reductions are listed in print that is smaller than

the prominently displayed price and/or in a different location.

c. A "Cash or Trade entry" refers to an entry in the reduction list pricing that is a

listed reduction item that requires the consumer to provide its value in the form of

money or a trade-in vehicle.

d. A "Reduction Item" is a single item in the list of reductions used in Reduction

List Pricing.

e. "Clear and Conspicuous" or "Clearly and Conspicuously," when referring to a

statement or disclosure, shall mean that such statement or disclosure is disclosed

in such size, color, contrast, location, duration, and audibility that it is readily

noticeable, readable, and understandable. A statement or disclosure may not

contradict or be inconsistent with any other information with which it is

presented. An audio statement or disclosure shall be delivered in a volume and

cadence sufficient for a consumer to hear and understand the entire statement or

disclosure. A video statement or disclosure shall be of a size and shade and

appear on the screen for a duration sufficient for a consumer to read and

understand the entire statement or disclosure. In a print advertisement, or other

printed promotional material, including, but without limitation, point of sale

display or brochure materials directed to consumers, statements or disclosures

shall be in a type size, font, appearance, and location sufficiently noticeable for a

consumer to read and comprehend it, in a print that contrasts with the background

against which it appears. For the purposes of this agreement, terms regarding,

affecting, or modifying the displayed price of a vehicle are clearly and

conspicuously displayed so long as such qualifying information or terms are in

close proximity to the price being displayed and readily noticeable, readable, and

understandable.

f. "Misrepresenting the price of a vehicle" shall mean representing the price in an

advertisement in a way Defendants know or should know could mislead a

reasonable consumer to believe that he or she can purchase the vehicle for a price

other than the one for which he or she could actually purchase the vehicle.

g. "Necessary and usual charges" include: freight, handling, vehicle preparation, and

documentary preparation.

14. Defendants, along with their officers, employees, agents, principals, and

subsidiaries, and persons acting in concert with any of them directly or indirectly, agree to cease

and permanently refrain from:

a. Using asterisk pricing in all motor vehicle advertisements;

b. Using Reduction List Pricing unless any reduction item is of equal prominence to

the prominently displayed price;

c. Using Reduction List Pricing unless all reduction items including, but not limited

to rebates, are available to all consumers without condition;1

d. Misrepresenting the price of any vehicle;

e. Advertising a price for a motor vehicle that does not include all necessary or usual

charges;

f. Advertising a sale or promotion without clearly and conspicuously disclosing the

expiration date of the sale or promotion and any conditions of the sale or

promotion;

g. Offering a specific price for trade-in vehicles in advertisements without clearly

and conspicuously disclosing any conditions a trade-in vehicle must meet for

Defendants to pay the advertised price;

h. Offering a range of prices for trade-in vehicles without clearly and conspicuously

disclosing the criteria which will be used to determine the amount Defendants will

pay for trade-in vehicles;

i. Refusing to sell motor vehicles in accordance with advertised terms or conditions;

and

j. Making statements in advertisements for the sale of motor vehicles that they know

or should know were false and/or misleading.

15. Defendants, along with their officers, employees, agents, principals, and

subsidiaries, and persons acting in concert with any of them directly or indirectly, agree to:

1 Nothing herein shall prohibit advertising of rebates that are not universally available outside of Reduction List

Pricing, so long as the limitations, restrictions, availability, and criteria are clearly and conspicuously disclosed.

Further, nothing shall prohibit a reduction where eligibility for the price reduction is universal, clear and

conspicuous, or reasonably clear from the context of the advertisements such as, without limitation, "factory rebate,"

"dealer discount," or "college graduate rebate."

a. Display all material terms of an advertised price, sale, or promotion clearly and

conspicuously; and

b. Clearly and conspicuously disclose whether any advertised price, including, but

not limited to, any advertised total price or monthly payment, relates to the

purchase of a motor vehicle or to the lease of a motor vehicle.

16. Defendants, along with their officers, employees, agents, principals, and

subsidiaries, and persons acting in concert with any of them directly or indirectly, agree that they

shall not advertise in a manner that violates the Massachusetts Consumer Protection Act, see

G. L. c. 93 A, or the Massachusetts Motor Vehicle Regulations on Advertising of Motor

Vehicles, see 940 Code Mass. Regs. § 5.02.

IV. Civil Penalties and Reasonable Costs and Attorney's Fees

17. Defendants shall pay $175,000 to the Commonwealth as set forth in paragraph 18.

From the money paid to the Commonwealth hereunder, the Attorney General's Office shall: first,

direct $75,000 to the Local Consumer Aid Fund established under G. L. c. 12, § 11G, and

second, treat the remaining $100,000 as civil penalties, attorneys' fees, and costs, and direct it to

the General Fund.

18. Defendants shall pay the amount set forth in paragraph 17 as follows;

a. $75,000 is due upon the signing of this Assurance.

b. $75,000 is due within three (3) months of the signing of this Assurance.

c. $25,000 is due within six (6) months of the signing of this Assurance.

19. Each payment shall be made by certified check payable to the Commonwealth of

Massachusetts. Said checks shall be delivered to the Office of the Attorney General, attention:

Ann E. Lynch, Assistant Attorney General, 1350 Main Street, 4th Floor, Springfield, MA 01103.

Defendants are jointly and severally liable for the total sum of $175,000.

V. Miscellaneous Provisions

20. This Assurance of Discontinuance shall be governed by and interpreted in

accordance with the laws of the Commonwealth of Massachusetts.

21. The Superior Court shall retain jurisdiction over this Assurance of

Discontinuance.

22. This Assurance shall not relieve Defendants of any obligations to comply with all

applicable federal and state laws and regulations.

23. Pursuant to G. L. c. 93A, § 2, any violation of this Assurance of Discontinuance

shall constitute prima facie evidence of a violation of G. L. c. 93A, § 2(a), in any action or

proceeding commenced by the Attorney General, but such allegation of violation shall not

foreclose any defense including that any alleged conduct was not knowing and/or intentional. If

the Attorney General determines that any Defendant has failed to comply with any of the terms

of this Assurance, the Attorney General will notify that Defendant in writing of such failure to

comply, and that Defendant shall then have ten (10) business days from receipt of such written

notice to provide a good faith written response, during which time the Attorney General will not

commence any action for violation of this Assurance.

24. The Commonwealth hereby releases Defendants, as well as their agents, affiliates,

parents, subsidiaries, successors, assigns, and all present and former officers, directors, and

employees of all such entities, from any and all claims for acts and practices through the date of

this Assurance related to the allegations described in this Assurance, and the Attorney General

will not proceed with, or institute a civil action or proceeding based upon any of said claims.

25. This Assurance contains the complete agreement between the parties. No

promises, representations, or warranties other than those set forth in this Assurance have been

made by either party. This Assurance supersedes all prior communications, discussions, or

understandings, if any, of the parties, whether written or oral. This Assurance can be modified or

supplemented only by written memorandum signed by both parties.

26. Defendants have consulted with counsel in connection with their decision to enter

into this Assurance.

27. The undersigned Carla Cosenzi and Thomas Cosenzi each represent that they are

duly authorized to execute this Assurance on behalf of Tommy-Car Management Corp., Tommy-

Car Corp., Tommy Car Advertising Inc., T & C Auto Corp d/b/a Northampton Volkswagen,

Country Hyundai Inc. d/b/a Country Hyundai, Patriot Buick GMC, Inc. d/b/a Patriot Buick

GMC, Carla Cosenzi individually and d/b/a Country Nissan, and Thomas Cosenzi, and that on

behalf of said entities they hereby voluntarily enter into this Assurance of Discontinuance.

COMMONWEALTH OF

MASSACHUSETTS

MARTHA COAKLEY

ATTORNEY GENERAL

1, / •'

Assistant Attorney General

Office of the Attorney General

1350 Main Street, 4th Floor

Springfield, MA 01103

(413) 523-7710 (phone)

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TOMMY CAR ADVERTISING INC.

PATRIOT BUICK GMC, INC.

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CARLA COSENZI

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THOMAS COSENZI

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Thomas Cosei

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COUNTRY HYUNDAI

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