Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 1 of 25
`
`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
`__________________________________________
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`JOSHUA GREENBERG, individually and as an
`officer of Acquinity Interactive, LLC and 7657030 )
`Canada, Inc.,
`)
`)
`)
`)
`)
`)
`
`
`
`Case No. 14-60166-CIV-
`SCOLA/VALLE
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`FEDERAL TRADE COMMISSION,
`
`Plaintiff,
`
`v.
`
`ACQUINITY INTERACTIVE, LLC, a Florida
`limited liability company,
`
`7657030 CANADA, INC., a Canadian
`corporation, also d/b/a ACQUINITY
`INTERACTIVE,
`
`
`
`
`GARRY JONAS, individually and as an officer
`of Acquinity Interactive, LLC and 7657030
`Canada, Inc.,
`
`SCOTT MODIST, individually and as an officer
`of Acquinity Interactive, LLC and 7657030
`Canada, Inc.,
`
`GREGORY VAN HORN, individually and as an
`officer of Acquinity Interactive, LLC,
`
`))
`
`
`)
`)
`)
`)
`)
`)
`
`REVENUE PATH E-CONSULTING PRIVATE,
`LIMITED, an Indian company,
`
`
`
`REVENUEPATH LIMITED, a Cyprus company,
`
`WORLDWIDE COMMERCE ASSOCIATES,
`LLC, a Nevada limited liability company, also
`d/b/a WCA,
`
`
`
`
`1
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
`__________________________________________
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`JOSHUA GREENBERG, individually and as an
`officer of Acquinity Interactive, LLC and 7657030 )
`Canada, Inc.,
`)
`)
`)
`)
`)
`)
`
`
`
`Case No. 14-60166-CIV-
`SCOLA/VALLE
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`FEDERAL TRADE COMMISSION,
`
`Plaintiff,
`
`v.
`
`ACQUINITY INTERACTIVE, LLC, a Florida
`limited liability company,
`
`7657030 CANADA, INC., a Canadian
`corporation, also d/b/a ACQUINITY
`INTERACTIVE,
`
`
`
`
`GARRY JONAS, individually and as an officer
`of Acquinity Interactive, LLC and 7657030
`Canada, Inc.,
`
`SCOTT MODIST, individually and as an officer
`of Acquinity Interactive, LLC and 7657030
`Canada, Inc.,
`
`GREGORY VAN HORN, individually and as an
`officer of Acquinity Interactive, LLC,
`
`))
`
`
`)
`)
`)
`)
`)
`)
`
`REVENUE PATH E-CONSULTING PRIVATE,
`LIMITED, an Indian company,
`
`
`
`REVENUEPATH LIMITED, a Cyprus company,
`
`WORLDWIDE COMMERCE ASSOCIATES,
`LLC, a Nevada limited liability company, also
`d/b/a WCA,
`
`
`
`
`1
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 2 of 25
`
`SARITA SOMANI, individually and as an officer
`of Worldwide Commerce Associates, LLC,
`Revenue Path E-Consulting Private Limited, and
`Revenuepath Limited,
`
`
`
`FIREBRAND GROUP, S.L., LLC, a Nevada
`limited liability company,
`
`MATTHEW BEUCLER, individually and as an
`officer of Firebrand Group, S.L., LLC,
`
`
`)
`)
`)
`)
`BURTON KATZ, individually and also doing
`business as Polling Associates Inc. and Boomerang )
`International, LLC,
`
`
`
`
`)
`)
`JONATHAN SMYTH, individually and also doing )
`business as Polling Associates Inc.,
`
`
`)
`
`
`
`
`
`
`
`)
`Defendants.
`)
`__________________________________________)
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`
`))
`
`AMENDED COMPLAINT FOR
`PERMANENT INJUNCTION AND OTHER EQUITABLE RELIEF
`
`Plaintiff, the Federal Trade Commission (“FTC”), for its Amended Complaint alleges:
`
`1.
`
`The FTC brings this action under Sections 13(b) and 19 of the Federal Trade
`
`Commission Act (“FTC Act”), 15 U.S.C. §§ 53(b) and 57(b), and the Telemarketing and
`
`Consumer Fraud and Abuse Prevention Act (“Telemarketing Act”), 15 U.S.C. §§ 6101-6108, to
`
`obtain temporary, preliminary, and permanent injunctive relief, rescission or reformation of
`
`contracts, restitution, the refund of monies paid, disgorgement of ill-gotten monies, and other
`
`equitable relief for Defendants’ acts or practices in violation of Section 5(a) of the FTC Act, 15
`
`U.S.C. § 45(a), and the FTC’s Trade Regulation Rule entitled “Telemarketing Sales Rule”
`
`(“TSR”), 16 C.F.R. Part 310.
`
`2
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 3 of 25
`
`JURISDICTION AND VENUE
`
`2.
`
`This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1337(a),
`
`and 1345, and 15 U.S.C. §§ 45(a), 53(b), 57(b), 6102(c), and 6105(b).
`
`3.
`
`Venue is proper in this district under 28 U.S.C. § 1391(b), (c) and (d), and 15
`
`U.S.C. § 53(b).
`
`PLAINTIFF
`
`4.
`
`The FTC is an independent agency of the United States Government created by
`
`statute. 15 U.S.C. §§ 41-58. The FTC enforces Section 5(a) of the FTC Act, 15 U.S.C. § 45(a),
`
`which prohibits unfair or deceptive acts or practices in or affecting commerce. The FTC also
`
`enforces the Telemarketing Act, 15 U.S.C. §§ 6101-6108. Pursuant to the Telemarketing Act,
`
`the FTC promulgated and enforces the TSR, 16 C.F.R. Part 310, which prohibits deceptive and
`
`abusive telemarketing acts or practices.
`
`5.
`
`The FTC is authorized to initiate federal district court proceedings, by its own
`
`attorneys, to enjoin violations of the FTC Act and the TSR and to secure such equitable relief as
`
`may be appropriate in each case, including rescission or reformation of contracts, restitution, the
`
`refund of monies paid, and the disgorgement of ill-gotten monies. 15 U.S.C. §§ 53(b),
`
`56(a)(2)(A) & (B), 57(b), 6102(c), and 6105(b).
`
`DEFENDANTS
`
`6.
`
`Defendant Acquinity Interactive, LLC is a Florida limited liability corporation
`
`with its principal place of business at 2200 SW 10th St., Deerfield Beach, FL 33442. Acquinity
`
`3
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 4 of 25
`
`Interactive, LLC transacts or has transacted business in this district and throughout the United
`
`States.
`
`7.
`
`Defendant 7657030 Canada,
`
`Inc., which also does business as Acquinity
`
`Interactive, is a Canadian corporation with its registered address at 39 Chambertin, Kirkland,
`
`Quebec, Canada H9H 5E3. 7657030 Canada, Inc. transacts or has transacted business in this
`
`district and throughout the United States.
`
`8.
`
`Defendant Garry Jonas (“Jonas”) is the President of Acquinity Interactive, LLC
`
`and 7657030 Canada, Inc. At all times material to this Complaint, acting alone or in concert
`
`with others, Jonas has formulated, directed, controlled, had the authority to control, or
`
`participated in the acts and practices set forth in this Complaint. Defendant Jonas, in connection
`
`with the matters alleged herein, transacts or has transacted business in this district and
`
`throughout the United States.
`
`9.
`
`Defendant Scott Modist (“Modist”) is the Chief Financial Officer of Acquinity
`
`Interactive, LLC and an officer of 7657030 Canada, Inc. At all times material to this Complaint,
`
`acting alone or in concert with others, Modist has formulated, directed, controlled, had the
`
`authority to control, or participated in the acts and practices set forth in this Complaint.
`
`Defendant Modist, in connection with the matters alleged herein, transacts or has transacted
`
`business in this district and throughout the United States.
`
`10.
`
`Defendant Joshua Greenberg (“Greenberg”) is the Chief Technology Officer of
`
`Acquinity Interactive, LLC and an officer of 7657030 Canada, Inc. At all times material to this
`
`Complaint, acting alone or in concert with others, Greenberg has formulated, directed,
`
`4
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 5 of 25
`
`controlled, had the authority to control, or participated in the acts and practices set forth in this
`
`Complaint. Defendant Greenberg, in connection with the matters alleged herein, transacts or has
`
`transacted business in this district and throughout the United States.
`
`11.
`
`Defendant Gregory Van Horn (“Van Horn”) is the Chief Optimization Officer of
`
`Acquinity Interactive, LLC. At all times material to this Complaint, acting alone or in concert
`
`with others, Van Horn has formulated, directed, controlled, had the authority to control, or
`
`participated in the acts and practices set forth in this Complaint. Defendant Van Horn, in
`
`connection with the matters alleged herein, transacts or has transacted business in this district
`
`and throughout the United States.
`
`12.
`
`Defendant Revenue Path E-Consulting Private Limited is an Indian company with
`
`its registered address at Office No. 501, 502, Sacred World, South Wing, Wanawadi, Pune,
`
`Maharahtra, 411040, India. Revenue Path E-Consulting Private Limited transacts or has
`
`transacted business in this district and throughout the United States.
`
`13.
`
`Defendant Revenuepath Limited is a Cyprus company with its registered address
`
`at Athinodorous, 3, Dasoupoli, Strovolos, 2025, Nicosia, Cyprus. Revenuepath Limited transacts
`
`or has transacted business in this district and throughout the United States.
`
`14.
`
`Defendant Worldwide Commerce Associates, LLC, which also does business as
`
`WCA (“WCA”), is a Nevada limited liability company with its principal place of business at
`
`3651 Lindell Road, Las Vegas, Nevada 89103. WCA is a wholly-owned subsidiary of Revenue
`
`Path E-Consulting Private Limited. WCA transacts or has transacted business in this district and
`
`throughout the United States.
`
`5
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 6 of 25
`
`15.
`
`Defendant Sarita Somani (“Somani”) is a manager of WCA, the Chief Executive
`
`Officer of Revenue Path E-Consulting Private Limited, and a director and shareholder of
`
`Revenuepath Limited. At all times material to this Complaint, acting alone or in concert with
`
`others, Somani has formulated, directed, controlled, had the authority to control, or participated
`
`in the acts and practices set forth in this Complaint. Somani, in connection with the matters
`
`alleged herein, transacts or has transacted business in this District and throughout the United
`
`States.
`
`16.
`
`Defendant Firebrand Group, S.L., LLC (“Firebrand”), is a Nevada limited liability
`
`company with its principal place of business at 7251 West Lake Boulevard, Suite 300, Las
`
`Vegas, Nevada 89103. Firebrand transacts or has transacted business in this district and
`
`throughout the United States.
`
`17.
`
`Defendant Matthew Beucler (“Beucler”) is the president of Firebrand. At all
`
`times material to this Complaint, acting alone or in concert with others, Beucler has formulated,
`
`directed, controlled, had the authority to control, or participated in the acts and practices set forth
`
`in this Complaint. Defendant Beucler, in connection with the matters alleged herein, transacts or
`
`has transacted business in this district and throughout the United States.
`
`18.
`
`Defendant Burton Katz (“Katz”), who also does business as Polling Associates
`
`Inc. and Boomerang International, LLC, is an individual who resides in Miami Beach, Florida.
`
`At all times material to this Complaint, acting alone or in concert with others, Katz has
`
`formulated, directed, controlled, had the authority to control, or participated in the acts and
`
`6
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 7 of 25
`
`practices set forth in this Complaint. Defendant Katz, in connection with the matters alleged
`
`herein, transacts or has transacted business in this district and throughout the United States.
`
`19.
`
`Defendant Jonathan Smyth (“Smyth”) who also does business as Polling
`
`Associates Inc., is an individual who resides in Miami Shores, Florida. At all times material to
`
`this Complaint, acting alone or in concert with others, Smyth has formulated, directed,
`
`controlled, had the authority to control, or participated in the acts and practices set forth in this
`
`Complaint. Defendant Smyth, in connection with the matters alleged herein, transacts or has
`
`transacted business in this district and throughout the United States. Katz and Smyth are referred
`
`to herein as the “Premium SMS Defendants.”
`
`20.
`
`Defendants Acquinity Interactive, LLC and 7657030 Canada, Inc. have operated
`
`as a common enterprise while engaging in the deceptive and unfair acts and practices alleged
`
`below. These Defendants have conducted the business practices described below through
`
`interrelated companies that have common ownership, officers, managers, business functions,
`
`employees, and office locations. Because these Defendants have operated as a common
`
`enterprise, each of them is jointly and severally liable for the acts and practices alleged below.
`
`Defendants Jonas, Modist, Greenberg, and Van Horn have formulated, directed, controlled, had
`
`authority to control, or participated in the acts and practices of these Defendants that constitute
`
`the common enterprise. Acquinity Interactive, LLC, 7657030 Canada, Inc., Jonas, Modist,
`
`Greenberg, and Van Horn are referred to herein as “the Acquinity Defendants.”
`
`21.
`
`Defendants Revenue Path E-Consulting Private Limited and Revenuepath Limited
`
`have operated as a common enterprise while engaging in the deceptive and unfair acts and
`
`7
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 8 of 25
`
`practices alleged below. These Defendants have conducted the business practices described
`
`below through interrelated companies that have common ownership, officers, managers, business
`
`functions, employees, and office locations. Because these Defendants have operated as a
`
`common enterprise, each of them is jointly and severally liable for the acts and practices alleged
`
`below. Defendant Somani has formulated, directed, controlled, had authority to control, or
`
`participated in the acts and practices of these Defendants that constitute the common enterprise.
`
`Revenue Path E-Consulting Private Limited, Revenuepath Limited, and Somani are referred to
`
`herein as “the Revenue Path Defendants.”
`
`COMMERCE
`
`22.
`
`At all times material to this complaint, Defendants have maintained a substantial
`
`course of trade in or affecting commerce, as “commerce” is defined in Section 4 of the FTC Act,
`
`15 U.S.C. § 44.
`
`DEFENDANTS’ BUSINESS ACTIVITIES
`
`23.
`
`Since at least June 2011, and continuing to the present, the Acquinity Defendants
`
`and Revenue Path Defendants (collectively “the Acquinity and Revenue Path Defendants”) have
`
`offered to consumers purportedly free merchandise, such as $1,000 gift cards to large retailers,
`
`and products such as an Apple iPad. (Such products and items are referred to herein as
`
`“promised free merchandise.”) The Acquinity and Revenue Path Defendants have advertised the
`
`promised free merchandise on various websites they operate, including freegiftyards.com,
`
`gadgetsngifts.com, get-goodies.com, and logic-boxes.com (the “free merchandise websites”).
`
`8
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 9 of 25
`
`Text Message Spam
`
`24.
`
`The Acquinity and Revenue Path Defendants attract consumers to the free
`
`merchandise websites through various means, including unsolicited commercial electronic text
`
`messages (“text message spam”) that are sent directly or through third parties acting on behalf of
`
`and for the benefit of the Acquinity and Revenue Path Defendants. The Acquinity and Revenue
`
`Path Defendants, either directly or through an intermediary, pay third parties for driving
`
`consumer traffic to the free merchandise websites through text message spam. The Acquinity
`
`and Revenue Path Defendants are responsible for the transmission and content of this text
`
`message spam.
`
`25. Many such text messages represent, expressly or by implication, that the
`
`consumer receiving the message has won a contest, or has been specially selected to receive a
`
`gift or prize. For example, the text messages contain statements such as: “You WON! Go to
`
`www.prizeconfirm.com to claim your $1000 Walmart Gift Card Now!” or “FREE MSG: you
`
`have been chosen
`
`to
`
`test & keep
`
`the new
`
`iPad for free only
`
`today!!
`
` Go
`
`to
`
`http://testnkeepcell.com and enter 2244 and your zipcode to claim it now!”
`
`26. Many, if not all, of the consumers who received the text message spam sent by or
`
`on behalf of the Acquinity or Revenue Path Defendants never agreed to be contacted by those
`
`Defendants or by those sending messages on their behalf.
`
`27.
`
`Some of the recipients of text message spam have wireless service plans that
`
`require them to pay a fixed fee for each text message received by their wireless handsets.
`
`Accordingly, such recipients were required to pay a fee for the receipt of the text message spam.
`
`9
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 10 of 25
`
`28.
`
`Other recipients of text message spam have wireless service plans that allow them
`
`a fixed, limited number of text messages per month without charge beyond their monthly service
`
`charge, with text messages that exceed the monthly allowance billed on a per-message basis.
`
`Accordingly, many such recipients had their monthly allowance of text messages reduced upon
`
`receipt of each text message spam sent by or on behalf of the Acquinity or Revenue Path
`
`Defendants.
`
`29.
`
`The consumer injury caused by the Acquinity and Revenue Path Defendants, or
`
`by third parties acting on those Defendants’ behalf, cannot be reasonably avoided by consumers.
`
`Text message spam is routinely foisted upon consumers without their advance knowledge or
`
`permission.
`
`30.
`
`Text message spam sent by or on behalf of the Acquinity and Revenue Path
`
`Defendants does not create countervailing benefits to consumers or to competition that outweigh
`
`the harm caused by their unlawful activity.
`
`31.
`
`The text messages contain links that, when clicked on, take consumers to one of
`
`the websites described below.
`
`Text Message Spam Websites
`
`32.
`
`Some consumers who click on the link in the text message spam are first taken to
`
`an Internet web page that recapitulates and expands upon the initial promised free merchandise
`
`offer (“text message spam page”). The text message spam page is operated by the third parties
`
`that send some of the text message spam, and those third parties are acting on behalf of and for
`
`the benefit of the Acquinity and Revenue Path Defendants. The Acquinity and Revenue Path
`
`10
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 11 of 25
`
`Defendants, either directly or indirectly through an intermediary, pay these third parties for
`
`driving consumer traffic to the free merchandise websites through the text message spam pages
`
`and are responsible for the content of these text message spam pages. The text message spam
`
`page contains statements such as “Receive a FREE $1,000 Walmart Gift Card” in large type.
`
`Each text message spam page requires consumers to enter a “code” (sent as part of the text
`
`message spam) in a text box and click on a button labeled “Continue” to go to the next page.
`
`Consumers who provide their code on the text message spam page are told that they have a
`
`“winning code” and are then taken to a page on one of the free merchandise websites (the
`
`“landing page”).
`
`33.
`
`In some instances, consumers who click on links in the text message spam are
`
`taken directly from the text message spam to the landing page without going through an
`
`intermediate text message spam page.
`
`The Free Merchandise Websites
`
`34.
`
`The landing page reinforces the message that the promised free merchandise is in
`
`fact “free” through statements such as “GET A FREE $1,000 WALMART GIFT CARD” or
`
`“Get the new iPad Free” and asks consumers to submit their email address or zip code in a text
`
`box. Consumers who submit their email address or zip code and click a “Claim Now” or
`
`“Continue” button near the text box are taken to a second page called the “registration page.”
`
`35.
`
`At the top of the registration page, in bold type, is a message such as
`
`“Congratulations! Tell us where to send your Free $1,000 Walmart Gift Card!” or
`
`“Congratulations! Tell us where to send your Free New iPad!” The registration page then
`
`11
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 12 of 25
`
`directs consumers to fill out an online form eliciting personal information, including the
`
`consumer’s gender, name, mailing address, e-mail address, date of birth, mobile phone number,
`
`and home phone number. In many instances, consumers provide the requested personal
`
`information based on the representation that they are doing so to enable the promised free
`
`merchandise to be shipped to them. Under the form on the registration page is a button labeled
`
`“Continue,” which consumers must click to proceed.
`
`36.
`
`Once consumers have submitted their personal information on the registration
`
`page and clicked on the “Continue” button, they are led to a page or set of pages on the websites
`
`where consumers are required to fill out a survey (the “survey page”). The survey page often
`
`states “[name], your $1,000 Walmart Gift Card is waiting!” or “[name], your Free New iPad is
`
`waiting!” To proceed past the survey page, consumers must provide information regarding,
`
`among other things, their: (1) job status; (2) income; (3) credit score; (4) credit card debt; (5)
`
`medical condition; (6) health insurance; and (7) car and home ownership. As with the
`
`registration page, the survey pages represent that consumers are submitting their personal
`
`information in order to receive the promised free merchandise.
`
`37.
`
`After consumers complete the survey page, the free merchandise websites lead
`
`them through a series of web pages containing offers for various goods and services from third
`
`parties. A consumer must accept (and often pay for) – in the parlance of the free merchandise
`
`websites, “fully complete” or “participate in” – a certain number of offers made by the third
`
`parties to qualify for the promised free merchandise. The free merchandise websites do not
`
`12
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 13 of 25
`
`clearly and conspicuously disclose the costs and obligations associated with participating in the
`
`third-party promotions.
`
`38.
`
`The consumer usually must complete a total of thirteen (13) offers in order to
`
`qualify for the promised free merchandise. Clicking on each offer reveals what the consumer
`
`must do to “complete” or “participate in” the offer. In most cases, completing an offer entails
`
`paying money or incurring some other obligation, such as applying and qualifying for credit
`
`cards.
`
`39.
`
`Some of the offers have free trial periods, but require consumers to participate for
`
`a minimum period of time to qualify for the promised free merchandise and to pay an initial
`
`shipping and handling charge. Moreover, many of these offers also contain negative option
`
`components in which consumers who do not cancel will be billed automatically and indefinitely.
`
`40.
`
`In many instances, consumers stop trying to qualify for the promised free
`
`merchandise, whether because of the cost involved, the time and effort required, or because
`
`consumers thought that, by inputting their contact information and completing the landing page,
`
`registration page, or survey page, they qualified for the promised free merchandise. Consumers
`
`have expended money, provided sensitive personal information, or incurred other obligations in
`
`the pursuit of the promised free merchandise. However, because they have not completed all of
`
`the required third-party promotions, they do not receive the promised free merchandise.
`
`41.
`
`In most if not all instances, it is impossible for a consumer to qualify for the
`
`promised free merchandise without spending money.
`
`13
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 14 of 25
`
`42.
`
`The free merchandise websites, and other websites operated by and for the benefit
`
`of the Acquinity and Revenue Path Defendants, including the landing pages, registration pages,
`
`and survey pages, do not clearly and conspicuously disclose that, to obtain the promised free
`
`merchandise, consumers must pay money or incur other costs or obligations. Instead, the free
`
`merchandise websites attempt to qualify the representations about the promised free merchandise
`
`only in separate hyperlinked pages or in print not of a type, size, or location sufficiently
`
`noticeable for an ordinary consumer to read and comprehend it.
`
`43.
`
`The free merchandise websites, and other websites operated by and for the benefit
`
`of the Acquinity and Revenue Path Defendants, including the landing pages, registration pages,
`
`and survey pages, represent that Defendants collect consumers’ personal information to send
`
`them the promised free merchandise. However, few if any consumers ever receive the promised
`
`free merchandise, and the Acquinity and Revenue Path Defendants instead proceed to sell or
`
`otherwise share with third parties the personal information they have collected. These websites
`
`refer to sharing consumers’ personal information only in separate hyperlinked pages or in print
`
`not of a type, size, or location sufficiently noticeable for an ordinary consumer to read and
`
`comprehend it.
`
`Premium SMS Services
`
`44.
`
`After consumers provide their requested personal information on the registration
`
`page, one of the offers they view on the free merchandise websites is marketed by the Acquinity
`
`and Revenue Path Defendants and the Premium SMS Defendants. As part of this offer, the
`
`Acquinity and Revenue Path Defendants and the Premium SMS Defendants represent
`
`to
`
`14
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 15 of 25
`
`consumers that, to claim the free merchandise, they should submit their mobile telephone
`
`number. This offer refers to the promised free merchandise and states, “your $1,000 Walmart
`
`Gift Card is waiting!” or “Claim your FREE iPad2 in your Color Choice.” The offer encourages
`
`consumers to submit or confirm their mobile telephone numbers with prominent language such
`
`as, “PLEASE CONFIRM YOUR VALID CELL NUMBER BELOW” or “Confirm your cell
`
`phone number to continue.” Adjacent to that prominent language is a field in which consumers
`
`can enter their mobile telephone number. Adjacent to that field is a button labeled “SUBMIT
`
`AND CONTINUE TO NEXT PAGE” or “CONFIRM.”
`
`In some cases, the Acquinity and
`
`Revenue Path Defendants and the Premium SMS Defendants have already “pre-populated”
`
`consumers’ mobile telephone into the field based on the consumers’ submission of that telephone
`
`number on the registration page, so that consumers merely need to “confirm” their already-
`
`entered number.
`
`45.
`
`Consumers who submit or confirm their mobile telephone numbers remain on the
`
`free merchandise websites and are instructed by the Acquinity and Revenue Path Defendants and
`
`the Premium SMS Defendants to submit a four-digit PIN number through prominent language
`
`such as, “CONFIRM YOUR 4-DIGIT PIN #.” Consumers who submit or confirm their mobile
`
`telephone numbers also receive a text message (sometimes known as “SMS” message) from the
`
`Premium SMS Defendants, transmitting the four-digit PIN number for consumers to enter on the
`
`free merchandise websites.
`
`46.
`
`Consumers who submit the transmitted four-digit PIN are registered for a
`
`premium SMS service in which they receive for a monthly charge periodic SMS messages on
`
`15
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 16 of 25
`
`topics such as trivia or coupon codes from the Premium SMS Defendants. The monthly charge
`
`for this service typically is $9.99 billed on consumers’ mobile telephone bills.
`
`47.
`
`The Acquinity and Revenue Path Defendants and the Premium SMS Defendants
`
`do not clearly and conspicuously disclose that consumers who submit or confirm their mobile
`
`telephone numbers and enter four-digit PIN numbers will have a monthly charge added to their
`
`mobile telephone accounts for purported services unrelated to the free merchandise. Instead, the
`
`only disclosure of this charge appears in separate hyperlinked pages or in print not of a type,
`
`size, or location sufficiently noticeable for an ordinary consumer to read and comprehend it.
`
`Initiating Robocalls Without Express Written Consent
`
`48.
`
`The Acquinity and Revenue Path Defendants supply personal information that
`
`consumers provide on the free merchandise websites to WCA, Firebrand, and Beucler. WCA,
`
`Firebrand and Beucler then use this information to send those consumers prerecorded voice
`
`messages through telephone calls (“robocalls” or “prerecorded messages”).
`
`49.
`
`The free merchandise websites fail to clearly and conspicuously disclose that
`
`consumers’ personal contact information will be transferred to third parties and then used to
`
`deliver prerecorded messages to consumers. Instead, the free merchandise websites provide any
`
`such disclosures only in separate hyperlinked pages or in print not of a type, size, or location
`
`sufficiently noticeable for an ordinary consumer to read and comprehend the disclosures.
`
`50.
`
`Through a program called Special Offer Service (“SOS”), WCA, Firebrand, and
`
`Beucler deliver to consumers robocalls that include offers for various types of goods and
`
`services, including travel, home security, satellite television, and entertainment. Consumers who
`
`16
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 17 of 25
`
`elect to respond to an offer presented on a SOS robocall are transferred to one of several third-
`
`party offer sponsors willing to fulfill a particular offer.
`
`51. WCA, Firebrand, and Beucler sell a telemarketing service that delivers robocalls
`
`to consumers. WCA, Firebrand, and Beucler place outbound SOS robocalls to consumers.
`
`WCA, Firebrand, and Beucler also identify sponsors willing to fulfill SOS offers and manage
`
`compliance policies and procedures.
`
`52. WCA, Firebrand, and Beucler are “sellers” and/or “telemarketers” engaged in
`
`“telemarketing,” as defined by the TSR, 16 C.F.R. 310.2(aa), (cc), and (dd). WCA, Firebrand,
`
`and Beucler have engaged in a plan, program, or campaign conducted to induce the purchase of
`
`goods or services by use of one or more telephones and which involves more than one interstate
`
`telephone call.
`
`53.
`
`In numerous instances, WCA, Firebrand, and Beucler have obtained the telephone
`
`numbers used for making robocalls from information provided by consumers on the free
`
`merchandise websites, and WCA, Firebrand, and Beucler did not obtain such consumers’ express
`
`written agreement to authorize WCA, Firebrand or Beucler to deliver prerecorded messages to
`
`the consumers. Consumers were not provided a clear and conspicuous disclosure that they were
`
`authorizing WCA, Firebrand or Beucler to deliver prerecorded messages to the consumers. In
`
`addition, consumers were required to provide their information on the free merchandise websites
`
`as a condition to obtaining the promised free merchandise.
`
`54.
`
`The Acquinity and Revenue Path Defendants have provided substantial assistance
`
`or support to WCA, Firebrand, and Beucler, including, but not limited to, by providing a list of
`
`17
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 18 of 25
`
`consumers to be called, when the Acquinity and Revenue Path Defendants knew or consciously
`
`avoided knowing that WCA, Firebrand, and Beucler were engaged in initiating outbound
`
`telephone calls delivering prerecorded messages to induce the purchase of goods or services in
`
`violation of the TSR.
`
`VIOLATIONS OF THE FTC ACT
`
`55.
`
`Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), prohibits “unfair or deceptive acts
`
`or practices in or affecting commerce.”
`
`56. Misrepresentations or deceptive omissions of material fact constitute deceptive
`
`acts or practices prohibited by Section 5(a) of the FTC Act.
`
`57.
`
`Acts or practices are unfair under Section 5 of the FTC Act if they cause
`
`substantial injury to consumers that consumers cannot reasonably avoid themselves and that is
`
`not outweighed by countervailing benefits to consumers or competition. 15 U.S.C. § 45(n).
`
`COUNT I
`
`58.
`
`In numerous instances, in connection with the advertising, marketing, promotion,
`
`or distribution of advertised offers, the Acquinity and Revenue Path Defendants have
`
`represented, directly or indirectly, expressly or by implication, that the promised free
`
`merchandise is without cost or obligation.
`
`59.
`
`In numerous instances in which the Acquinity and Revenue Path Defendants have
`
`made the representation set forth in Paragraph 58 of this Complaint, they have failed to disclose
`
`or disclose adequately to consumers material terms and conditions of the offer, including:
`
`18
`
`
`
`Case 0:14-cv-60166-RNS Document 88 Entered on FLSD Docket 06/16/2014 Page 19 of 25
`
`a.
`
`b.
`
`that consumers must pay money or other consideration to obtain the
`
`promised free merchandise; and
`
`the costs and obligations to obtain the promised free merchandise.
`
`60.
`
`The Acquinity and the Revenue Path Defendants’ failure to disclose or disclose
`
`adequately the material information described in Paragraph 59 above, in light of the
`
`representation described in Paragraph 58 above, constitutes a deceptive act or practice in
`
`violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a).
`
`COUNT II
`
`61.
`
`In numerous instances, in connection with the advertising, marketing, promotion,
`
`or distribution of advertised offers, the Acquinity and Revenue Path Defendants have
`
`represented, directly or indirectly, expressly or by implication, that they collect consumers’
`
`personal information to send consumers the promised free merchandise.
`
`62.
`
`In truth and in fact, in numerous instances in which the Acquinity and Revenue
`
`Path De
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
