Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 1 of 23
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` CIVIL DIVISION
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`COMPLAINT FOR PERMANENT
`INJUNCTION, CIVIL PENALTIES,
`AND OTHER EQUITABLE RELIEF
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF PENNSYLVANIA
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`COMMONWEALTH OF PENNSYLVANIA,
`By JOSH SHAPIRO, ATTORNEY GENERAL,
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`
`
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`Plaintiff,
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`
`v.
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`FLUENT, LLC d/b/a CAC; AMERICAN
`PRIZE CENTER, LLC; DELIVER
`TECHNOLOGY, LLC; REWARDZONE USA,
`LLC; and SAMPLES & SAVINGS USA, LLC,
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`
`
`Defendants.
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`
`
`
`
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`Filed on Behalf of Plaintiff:
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`COMMONWEALTH OF
`PENNSYLVANIA, JOSH SHAPIRO
`ATTORNEY GENERAL
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`Counsel of Record for this Party:
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`Amy L. Schulman
`Senior Deputy Attorney General
`P.A. I.D. No. 80888
`
` 1251 Waterfront Place
` Mezzanine Level
` Pittsburgh, PA 15222
` (412) 565-3523
`
`
`Kevin R. Green
`Deputy Attorney General
`P.A. I.D. No. 321643
` 1251 Waterfront Place
`Mezzanine Level
`Pittsburgh, PA 15222
`(412) 235-9078
`
`
`2:22-cv-1551
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`

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`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 2 of 23
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF PENNSYLVANIA
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`COMMONWEALTH OF PENNSYLVANIA,
`By JOSH SHAPIRO, ATTORNEY GENERAL,
`
`
`
`
`Plaintiff,
`
`
`v.
`
`FLUENT, LLC d/b/a CAC; AMERICAN
`PRIZE CENTER, LLC; DELIVER
`TECHNOLOGY, LLC; REWARDZONE USA,
`LLC; and SAMPLES & SAVINGS USA, LLC,
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`
`
`
`
`
`
`
`
`
`CIVIL DIVISION
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`Defendants.
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`COMPLAINT FOR PERMANENT INJUNCTION, CIVIL PENALTIES,
`AND OTHER EQUITABLE RELIEF
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`AND NOW, comes the Commonwealth of Pennsylvania, by Josh Shapiro, Attorney
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`General (“Commonwealth”), and brings this action against Fluent LLC d/b/a CAC, American
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`Prize Center, LLC, Deliver Technology, LLC, RewardZone USA, LLC and Samples & Savings
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`USA, LLC (collectively “Defendants” or “Fluent”) and alleges the following:
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`INTRODUCTION
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`1.
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`The Commonwealth brings this action pursuant to the Telemarketing and
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`Consumer Fraud and Abuse Prevention Act (“Telemarketing Act”), 15 U.S.C. §§ 6101-6108,
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`and Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1, et
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`seq. (Consumer Protection Law), to obtain permanent injunctive relief, civil penalties and other
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`equitable relief for Defendants’ acts and practices in violation of Pennsylvania’s Telemarketer
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`Registration Act, 73 P.S. § 2241, et seq. (“TRA”), the Federal Trade Commission’s Trade
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`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 3 of 23
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`Regulation Rule entitled “Telemarketing Sales Rule” (“TSR”), 16 C.F.R. Part 310, as well as the
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`Consumer Protection Law.
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`2.
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`Section 201-4 of the Consumer Protection Law authorizes the Attorney General to
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`bring an action in the name of the Commonwealth of Pennsylvania to restrain by temporary
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`and/or permanent injunction unfair methods of competition or unfair or deceptive acts or
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`practices in the conduct of any trade or commerce declared unlawful by Section 201-3 of the
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`Consumer Protection Law. 73 P.S. §§ 201-3 and 201-4.
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`3.
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`Further, whenever an attorney general of any State has reason to believe that the
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`interests of the residents of that State have been or are being threatened or adversely affected
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`because any person has engaged or is engaging in a pattern or practice of telemarketing which
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`violates any rule under Section 6102 of Telemarketing Act, the State, as parens patriae, may
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`bring a civil action on behalf of its residents in an appropriate district court of the United States
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`to enjoin such telemarketing, to enforce compliance with such rule of the Commission, to obtain
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`damages, restitution, or other compensation on behalf of residents of such State, or to obtain such
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`further and other relief as the court may deem appropriate. 15 U.S.C. § 6103(a).
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`4.
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`At all times relevant hereto, and as alleged in more fully herein, Defendants
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`engaged in trade and commerce by advertising and marketing promotional offers and
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`opportunities to Pennsylvania consumers, such as gift cards and free samples, in order to acquire
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`consumer data for purposes of lead generation.
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`5.
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`In connection with these business operations, the Commonwealth has reason to
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`believe that Defendants have used methods, acts or practices declared unlawful by the TSR, the
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`TRA and the Consumer Protection Law.
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`2
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`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 4 of 23
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`6.
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`The unfair methods, acts and practices complained of herein have been willfully
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`used by Defendants.
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`7.
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`The Commonwealth believes that citizens of the Commonwealth are suffering and
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`will continue to suffer harm unless the acts and practices complained of herein are permanently
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`enjoined.
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`JURISDICTION AND VENUE
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`8.
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`This Court has subject-matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1337(a),
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`and 1355, as well as 15 U.S.C. §§ 6103(a).
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`9.
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`This Court has supplemental jurisdiction over the remaining claims under 28
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`U.S.C. § 1367.
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`10.
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`Venue is proper in this district because pursuant to 15 U.S.C. § 6103(e) and 28
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`U.S.C. §§ 1391(b)(2) and 1395(a).
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`PARTIES
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`11.
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`Plaintiff is the Commonwealth of Pennsylvania, Office of Attorney General, with
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`offices located at 1251 Waterfront Place, Mezzanine Level, Pittsburgh, Pennsylvania 15222; and
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`15th Floor, Strawberry Square, Harrisburg, Pennsylvania 17120.
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`12.
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`Defendant Fluent, LLC is a Delaware limited liability company with a principal
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`place of business located at 300 Vesey Street, 9th Floor New York, New York 10282.
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`13.
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`Defendant Fluent, LLC does business as CAC, an Assumed Name, registered with
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`the New York State Department of State, Division of Corporations.
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`14.
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`Defendant American Prize Center, LLC is a New York limited liability company
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`with a principal place of business located at 300 Vesey Street, 9th Floor New York, New York
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`10282 and is a subsidiary of Fluent, LLC.
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`3
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`15.
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`Defendant Deliver Technology, LLC is a Delaware limited liability company with
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`a principal place of business located at 300 Vesey Street, 9th Floor New York, New York 10282.
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`16.
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`Defendant RewardZone USA, LLC is a New York limited liability company with
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`a principal place of business located at 300 Vesey Street, 9th Floor New York, New York 10282
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`and is a subsidiary of Fluent, LLC.
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`17.
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`Defendant Samples & Savings USA, LLC is a Delaware limited liability company
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`with a principal place of business located at 300 Vesey Street, 9th Floor New York, New York
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`10282 and is a subsidiary of Fluent, LLC.
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`18.
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`Defendants have operated as a common enterprise while engaging in the
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`deceptive, unfair, and unlawful acts and practices and other violations of law alleged below.
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`Defendants have conducted the business practices described below through an interrelated
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`network of companies that have common ownership, common officers, common office locations
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`and use common services. Because Defendants have operated as a common enterprise, each of
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`them is liable for the acts and practices alleged below.
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`DEFENDANTS’ BUSINESS PRACTICES
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`19.
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`Defendants advertise, offer for sale and sell lead generating services to third party
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`businesses and organizations, which Defendants refer to as their “Marketing Partners.”
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`20.
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`Lead generation involves collecting personal information, including telephone
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`numbers, from consumers and then selling that information to third parties who want to use the
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`leads to generate business.
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`21. Many of Defendants’ Marketing Partners are companies that advertise and sell
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`subscription services, streaming services, insurance, utility services and on-line education
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`programs.
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`4
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`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 6 of 23
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`22.
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`Defendants operate dozens of websites designed for lead generating, including but
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`not limited to:
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`a. www.consumersrvycnter.com;
`b. www.surveysandpromotions.com;
`c. http://restaurantpromotionsusa.com;
`d. www.electronicproductzone.com;
`e. www.webpromotionsusa.com;
`f. www.consumerproductsusa.com;
`g. https://signup.sweepstakesgroup.com;
`h. http://www.mymonthlysweeps.com; and
`i. https://www.sweepstakesamonth.com.
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`In order to drive consumer traffic to their websites, Defendants used the internet
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`23.
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`and social media to advertise promotional offerings, such as gift cards to popular retailers and
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`digital payments through mobile apps, as depicted below and as attached as “Exhibit 1.”
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`5
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`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 7 of 23
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`24.
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`Defendants advertise these promotional offerings to consumers through social
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`media, internet advertising on third party websites, email solicitations and search engine
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`optimization.
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`25.
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`Once consumers are directed to Defendants’ websites, images of the promotional
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`offerings are prominently featured to entice consumers to continue to engage with Defendants on
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`their websites.
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`26.
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`Defendants’ websites use various methods to ask consumers to enter their
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`personal contact information in a registration form, including name, address and primary phone
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`number, as shown below and as attached as “Exhibit 2.”
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`6
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`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 8 of 23
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`27.
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`Located below the registration form is a fine print disclosure that states:
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`By checking the box below I consent to receive
`phone sales calls and text messages – Msg and data
`rates apply – from Verde Energy, CAC and our
`Marketing Partners on the landline or mobile
`number I provided even if I am on a federal or State
`do not call registry. I understand these calls may be
`generated using an autodialer and may contain pre-
`recorded messages and that consenting is not
`required to participate in the offers promoted.
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`For SMS message campaigns: Text STOP to stop
`and HELP for help. Msg & data rates may apply.
`Periodic messages; max. 30/month.
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`The term “Marketing Partners” is hyperlinked and upon clicking this hyperlink a
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`28.
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`pop up screen appears and identifies the companies and organizations that the consumer is
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`purportedly consenting to be contacted by, as described in the fine print disclosure.
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`29.
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`Consumers are not required to click on or view the hyperlinked list of Marketing
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`Partners in order to provide purported consent to be contacted for purposes of telemarketing.
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`30.
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`At times, the hyperlinked list of Marketing Partners identified hundreds of
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`companies and organizations for whom Defendants sought consumers’ purported consent to be
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`contacted for purposes of telemarketing, as shown below and as attached as “Exhibit 3.”
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`7
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`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 9 of 23
`Case 2:22-cv-01551-NR Document1 Filed 11/02/22 Page 9 of 23
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`4218,
`Pay
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`YOU PROVIDED THIS PHONE:nn
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`By checking the box below | expressly consentto receive
`marketing and informational phone calls and text
`messagesfrom CAC and our Marketing Partners on the
`land line and/or mobile number | provided. | confirm that
`the phone number set forth above is accurate and | am the
`regular user of the phone. | understand these calls may be
`generated using an autodialer and may contain pre-
`recorded and artificial voice messages and | do not need
`to check the box to participate in the deals promoted,
`offers or to claim a Reward
`
`For SMS message campaigns: Text STOP to stop and
`HELP for help.Msg & data rates may apply.Periodic
`messages; max. 30 / month.
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`to be called and texted andthatall
`my information is accurate as
`provided above
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`Continue ->
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`8
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`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 10 of 23
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`Entities Disclosed Behind the Marketing Partner Hyperlink
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`9
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`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 11 of 23
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`31.
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`Below the fine print disclosure, Defendants ask consumers to check a box, which
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`states “I Confirm” followed by another fine print disclosure stating “that all of my information is
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`accurate and consent to be called and texted as provided above.”
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`32.
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`33.
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`At the bottom of the page is a large green button that states “Continue.”
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`The fine print disclosure seeking purported consumer consent to be contacted,
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`described above, is notably obscured by the image of the promotional offer and the larger and
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`more prominent text used to encourage the consumers to check the box and hit “Continue.”
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`34.
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`After consumers submit their contact information, consumers are prompted
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`through several sequential webpages to answer survey questions and view marketing offers.
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`35.
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`These survey questions are designed to gather more information about the
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`consumers for purposes of lead generation.
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`36.
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`In connection with some of the survey questions, Defendants seek consumers’
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`purported consent to receive telemarketing calls from certain Marketing Partners, as shown
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`below and as attached as “Exhibit 4.”
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`10
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`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 12 of 23
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`37.
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`These particular survey questions fail to clearly and conspicuously disclose to
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`consumers that if they select a certain answer to the survey question, they are in turn purportedly
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`consenting to be contacted for purposes of telemarketing by one of Defendants’ Marketing
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`Partners.
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`38.
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`From 2018 through 2021, more than 4.2 million Pennsylvania consumers
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`registered their personal contact information with Defendants’ websites.
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`11
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`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 13 of 23
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`39.
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`Defendants’ websites mislead or have the tendency and/or capacity to mislead
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`consumers to provide their purported consent to be contacted by Defendants’ Marketing Partners
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`for purposes of telemarketing.
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`40.
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`Defendants’ websites mislead or have the tendency and/or capacity to mislead
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`consumers into believing they are confirming their contact information in order to register to
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`receive a promotional offering, when in fact they are entering their contact information for
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`purposes of lead generation and the consumer’s purported consent to be contacted for purposes
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`of telemarketing.
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`41.
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`These promotional offerings fail to include clear and conspicuous disclosures
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`advising consumers that by registering their contact information with Defendants they are
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`purportedly consenting to be contacted by multiple third party sellers, whose products and
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`services are wholly unrelated to the promotional offerings.
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`42.
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`These promotional offerings are only available to consumers if they participate
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`in a certain number of advertised deals that Defendants promote on their websites, such as
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`accepting trial offers to certain products and services.
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`43.
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`Defendants’ lack of transparency and deceptive marketing practices have denied
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`consumers the opportunity to make informed decisions about sharing their personal contact
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`information for purposes of telemarketing.
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`44.
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`Defendants’ acts and practices, as described herein, have resulted in millions of
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`telemarketing calls being placed to Pennsylvania consumers by or on behalf of Defendants’
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`Marketing Partners.
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`12
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`45.
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`As a result of Defendants’ substantial assistance or support, many of these
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`telemarketing calls were illegally trafficked by or on behalf of Defendants’ Marketing Partners,
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`as alleged in more detail below.
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`THE TELEMARKETING SALES RULE
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`46.
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`Congress directed the Federal Trade Commission (“FTC”) to adopt the original
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`TSR in 1995, extensively amended it in 2003, and amended certain provisions thereafter. 16
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`C.F.R. Part 310.
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`47.
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`Among other things, the 2003 amendments to the TSR established a do-not-call
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`registry (“Registry”), maintained by the Commission, of consumers who do not wish to receive
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`certain types of telemarketing calls. Consumers can register their telephone numbers on the
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`Registry without charge either through a toll-free telephone call or over the Internet at
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`donotcall.gov.
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`48.
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`Under the TSR, “telemarketing” means, “a plan, program, or campaign which is
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`conducted to induce the purchase of goods or services or a charitable contribution, by use of one
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`or more telephones and which involves more than one interstate telephone call.” 16 C.F.R.
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`§ 310.2(gg).
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`49.
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`Under the TSR, an “outbound telephone call” means a telephone call initiated by
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`a telemarketer to induce the purchase of goods or services or to solicit a charitable contribution.
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`16 C.F.R. § 310.2(x).
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`50.
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`The TSR prohibits sellers and telemarketers from engaging in abusive
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`telemarketing acts or practices by initiating an outbound telephone call to numbers on the
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`Registry unless the seller or telemarketer can demonstrate that the seller (1) has obtained the
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`13
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`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 15 of 23
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`consumer's express agreement, in writing, to place such calls, or (2) has an established business
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`relationship with that consumer. 16 C.F.R. § 310.4(b)(l)(iii)(B).
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`51.
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`Valid written consent to receive a live telemarketing call to a number on the
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`Registry requires: (i) a writing signed by the consumer, (ii) clearly evidencing authorization to
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`receive calls placed by or on behalf of a specific party, and (iii) stating the telephone number to
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`which such calls may be placed. 16 C.F.R. § 310.4(b)(l)(iii)(B)(l).
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`52.
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`The TSR also prohibits sellers and telemarketers from engaging in abusive
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`telemarketing acts or practices by initiating an outbound telephone call that delivers a
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`prerecorded message, unless the seller has obtained the consumer’s express agreement in writing
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`to receive such calls. 16 C.F.R. § 310.4(b)(1)(v).
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`53.
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`54.
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`Calls delivering prerecorded messages are commonly called “robocalls.”
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`An express agreement in writing to receive telephone calls delivering a
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`prerecorded message must include: (1) a clear and conspicuous disclosure that the purpose of the
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`agreement is to authorize the seller to place prerecorded calls to such person; (2) language that
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`the seller did not require the agreement to be executed as a condition of purchasing a good or
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`service; (3) language that the specific seller is authorizing to make such calls; and (4) the
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`consumer’s telephone number and signature. 16 C.F.R. § 310.4(b)(1)(v)(A)(i)-(iv).
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`55.
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`The Statement Basis and Purpose of the 2008 Amendments to the TSR
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`(“Statement Basis and Purpose”), emphasized that request for consumer consent to receive calls
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`delivering prerecorded messages shall not be hidden or buried in fine print:
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`Some consumers express concern that sellers’ requests for their
`agreement to receive prerecorded calls might be hidden in contest
`entry or other forms or on the back of credit card receipts. The
`Commission recognizes that these concerns are legitimate, based
`on its enforcement experience, and accordingly has incorporated in
`the amendment a requirement that a seller’s request for a
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`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 16 of 23
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`consumer’s agreement to receive prerecorded calls be ‘‘clearly and
`conspicuously’’ disclosed, as two industry comments also
`recommend. Legal precedent established by the Commission’s
`long use of this term of art will ensure that consumers are not
`deceived or confused by hidden ‘‘agreements’’ buried in fine print.
`[citations omitted].
`
`
`See Federal Register, Vol. 73, No. 169, Pg. 51182 (Aug. 2008).1
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`56.
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`The Statement Basis and Purpose goes on to state that a consumer’s consent to
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`receive calls delivering pre-recorded messages is non-transferable.
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`…the Commission emphasizes that a consumer’s agreement with a
`seller to receive calls delivering prerecorded messages is
`nontransferable. Any party other than that particular seller must
`negotiate its own agreement with the consumer to accept calls
`delivering prerecorded messages. Prerecorded calls placed to a
`consumer on the National Do Not Call Registry by some third
`party that does not have its own agreement with the consumer
`would violate the TSR. Thus, because information sharing cannot
`be a shortcut for the required written agreement to receive
`prerecorded calls, the Commission sees no need to impose a
`disclosure about information sharing. Id. at 51182.2
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`Accordingly, under the TSR, a consumer’s express agreement to accept calls
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`57.
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`delivering a prerecorded message may not be obtained by a lead generator, who is not a seller or
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`a telemarketer. The express agreement must be obtained directly by the seller or telemarketer
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`from the consumer.
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`58.
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`The TSR further declares that “[i]t is a deceptive telemarketing act or practice and
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`a violation of this Rule for a person to provide substantial assistance or support to any seller or
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`telemarketer when that person knows or consciously avoids knowing that the seller or
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` 1
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` See, https://www.govinfo.gov/content/pkg/FR-2008-08-29/pdf/FR-2008-08-29.pdf
`2 See also, the FTC Guide “Complying with the Telemarketing Sales Rule,” which states, “the TSR requires that the written
`agreement identify the single ‘specific seller’ authorized to deliver prerecorded messages. The authorization does not extend to
`other sellers, such as affiliates, marketing partners or others.” https://www.ftc.gov/business-guidance/resources/complying-
`telemarketing-sales-rule#writtenagreement.
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`telemarketer is engaged in any act or practice that violates §§ 310.3(a), (c) or (d), or § 310.4 of
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`this Rule.” 16 C.F.R. § 310.3(b).
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`THE TELEMARKETER REGISTRATION ACT
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`59.
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`Section 2245(a)(9) of the TRA prohibits engaging in any deceptive or abusive
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`telemarketing acts or practices in violation of the TSR. 73 P.S. § 2245(a)(9).
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`60.
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`A violation of the TRA is a violation of the Consumer Protection Law. 73 P.S.
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`§ 2246(a).
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`COUNT I - VIOLATIONS OF THE TSR, TRA
`AND THE CONSUMER PROTECTION LAW
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`ASSISTING AND FACILITATING
`THE DELIVERY OF TELEMARKETING CALLS TO CONSUMERS REGISTERED
`ON A DNC LIST WITHOUT THEIR VALID CONSENT
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`The preceding paragraphs are incorporated herein as though fully set forth
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`61.
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`below.
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`62.
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`By obtaining and selling telemarketing leads to their Marketing Partners, as
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`described herein, Defendants provided substantial assistance or support to sellers and
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`telemarketers, engaged in telemarketing, as defined by TSR, 16 C.F.R.§ 310.2.
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`63.
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`As a result of Defendants’ substantial assistance or support, Defendants’
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`Marketing Partners initiated or caused the initiation of outbound telephone calls to Pennsylvania
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`telephone numbers to induce the purchase of goods or services, even though said telephone
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`numbers are on the National DNC Registry without the consumer’s valid consent, in violation of
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`Section 310.4(b(1)(iii)(B) of the TSR.
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`64.
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`These illegal telemarking calls would not have been made by sellers and
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`telemarketers to Pennsylvania consumers, but for Defendants’ substantial assistance and support.
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`16
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`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 18 of 23
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`65.
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`Defendants knew or consciously avoided knowing that these sellers or
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`telemarketers were engaged in acts and practices in violation of Section 310.4 of the TSR.
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`66.
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`Defendants’ acts and practices constitute deceptive telemarketing acts or practices
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`and violate the TSR. 16 C.F.R. § 310.3(b).
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`67.
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`A violation of the TSR constitutes a violation of the TRA and by extension a
`
`violation of the Consumer Protection Law. 73 P.S. § 2245(a)(9) and 73 P.S. § 2246(a).
`
`68.
`
`The aforesaid acts and practices further constitute unfair methods of competition
`
`and/or unfair or deceptive acts or practices as prohibited by Section 201-3 of the Consumer
`
`Protection Law, as defined by Section 201-2(4)(xxi) of said Law, by engaging in any other
`
`fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding,
`
`in violation of Section 201-2(4)(xxi). 73 P.S. § 201-3 and § 201-2(4) (xxi).
`
`69.
`
`The Commonwealth believes that the citizens of the Commonwealth are suffering
`
`and will continue to suffer harm unless the acts and practices complained of herein are
`
`permanently enjoined.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, the Commonwealth respectfully requests this Honorable Court to issue
`
`
`
`an Order:
`
`
`
`
`
`
`
`
`
`
`A.
`
`
`B.
`
`C.
`
`Declaring Defendants’ conduct, as set forth in this Complaint, to be in
`violation of the Consumer Protection Law, the TRA and the TSR;
`
`Permanently enjoining Defendants and all other persons acting on their
`behalf, directly or indirectly, from violating the Consumer Protection Law,
`the TRA and the TSR and any amendments thereto;
`
`Directing Defendants, pursuant to Section 201-8(b) of the Consumer
`Protection Law, to pay civil penalties in the amount of one thousand and
`00/100 dollars ($1,000.00) for each and every violation of the Consumer
`
`17
`
`

`

`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 19 of 23
`
`
`D.
`
`
`E.
`
`F.
`
`Protection Law, which will increase to three thousand and 00/100 dollars
`($3,000.00) for each violation involving a victim age sixty (60) or older;
`
`Requiring Defendants to pay the Commonwealth for the costs of its
`investigation and prosecution of this action;
`
`Directing Defendants to disgorge and forfeit all profits they have derived
`as a result of their unfair and deceptive acts and practices set forth in this
`Complaint;
`
`Permanently enjoining Defendants from selling, sharing or transferring
`consumer data, including a consumer’s name and telephone number, for
`purposes of telemarketing, unless that the consumer data was obtained in
`full compliance with the TSR and TRA; and
`
`G.
`
`Granting such other relief as the Court deems necessary and appropriate.
`
`
`COUNT II – VIOLATIONS OF THE TSR, TRA
`AND THE CONSUMER PROTECTION LAW
`
`ASSISTING AND FACILITATING
`THE MAKING OF TELEMARKETING CALLS DELIVERING
`PRERECORDED MESSAGES/ROBOCALLS TO CONSUMERS WITHOUT
`THEIR VALID CONSENT
`
`The preceding paragraphs are incorporated herein as though fully set forth below.
`
`70.
`
`
`
`
`
`71.
`
`By obtaining and selling telemarketing leads to their Marketing Partners, as
`
`described herein, Defendants provided substantial assistance or support to sellers and
`
`telemarketers engaged in telemarketing, as defined by TSR, 16 C.F.R.§ 310.2, including the
`
`delivery of robocalls to Pennsylvania consumers.
`
`72.
`
`As a result of Defendants’ substantial assistance or support, Defendants’
`
`Marketing Partners initiated or caused the initiation of outbound telephone calls that delivered
`
`pre-recorded messages to Pennsylvania telephone numbers to induce the purchase of goods or
`
`
`
`
`18
`
`

`

`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 20 of 23
`
`services, without the consumers’ valid consent or agreement, in violation of Section
`
`310.4(b(1)(v) of the TSR.
`
`73.
`
`These illegal robocalls would not have been made by sellers and telemarketers to
`
`Pennsylvania consumers, but for Defendants’ substantial assistance or support.
`
`74.
`
`Defendants knew or consciously avoided knowing that these sellers or
`
`telemarketers were engaged in acts and practices in violation of Section 310.4 of the TSR.
`
`75.
`
`Defendants’ acts and practices constitute deceptive telemarketing acts or practices
`
`and violate the TSR. 16 C.F.R. § 310.3(b).
`
`76.
`
`A violation of the TSR constitutes a violation of the TRA and by extension a
`
`violation of the Consumer Protection Law. 73 P.S. § 2245(a)(9) and 73 P.S. § 2246(a).
`
`77.
`
`The aforesaid acts and practices further constitute unfair methods of competition
`
`and/or unfair or deceptive acts or practices as prohibited by Section 201-3 of the Consumer
`
`Protection Law, as defined by Section 201-2(4)(xxi) of said Law, by engaging in any other
`
`fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding,
`
`in violation of Section 201-2(4)(xxi). 73 P.S. § 201-3 and § 201-2(4) (xxi).
`
`78.
`
`The Commonwealth believes that the citizens of the Commonwealth are suffering
`
`and will continue to suffer harm unless the acts and practices complained of herein are
`
`permanently enjoined.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, the Commonwealth respectfully requests this Honorable Court to issue
`
`
`
`an Order:
`
`
`
`
`
`
`
`
`A.
`
`
`Declaring Defendants’ conduct, as set forth in this Complaint, to be in
`violation of the Consumer Protection Law, the TRA and the TSR;
`
`19
`
`

`

`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 21 of 23
`
`B.
`
`C.
`
`
`D.
`
`
`E.
`
`F.
`
`Permanently enjoining Defendants and all other persons acting on their
`behalf, directly or indirectly, from violating the Consumer Protection Law,
`the TRA and the TSR and any amendments thereto;
`
`Directing Defendants, pursuant to Section 201-8(b) of the Consumer
`Protection Law, to pay civil penalties in the amount of one thousand and
`00/100 dollars ($1,000.00) for each and every violation of the Consumer
`Protection Law, which will increase to three thousand and 00/100 dollars
`($3,000.00) for each violation involving a victim age sixty (60) or older;
`
`Requiring Defendants to pay the Commonwealth for the costs of its
`investigation and prosecution of this action;
`
`Directing Defendants to disgorge and forfeit all profits they have derived
`as a result of their unfair and deceptive acts and practices set forth in this
`Complaint;
`
`Permanently enjoining Defendants from selling, sharing or transferring
`consumer data, including a consumer’s name and telephone number, for
`purposes of telemarketing, unless that the consumer data was obtained in
`full compliance with the TSR and TRA; and
`
`G.
`
`Granting such other relief as the Court deems necessary and appropriate.
`
`COUNT III – VIOLATIONS OF THE CONSUMER PROTECTION LAW
`DECEPTIVE BUSINESS PRACTICES
`
`The preceding paragraphs are incorporated herein as though fully set forth below.
`
`79.
`
`
`
`
`
`
`
`80.
`
`As described herein, Defendants use a broad range of deceptive tactics and
`
`methods, including but not limited to promises of free offers, gift cards to popular retailers, and
`
`elusive rewards, to lure consumers to provide their contact information for purposes of
`
`telemarketing.
`
`81.
`
`Defendants orchestrated pattern of deception and subterfuge constitutes unfair
`
`methods of competition and/or unfair or deceptive acts or practices as prohibited by Section 201-
`
`
`
`
`20
`
`

`

`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 22 of 23
`
`3 of the Consumer Protection Law, as defined by Section 201-2 of said Law, including without
`
`limitation:
`
`
`
`
`
`a. Causing likelihood of confusion or of misunderstanding as to the source,
`sponsorship, approval or certification of goods or services, 73 P.S. § 201-2(4)(ii);
`
`b. Causing likelihood of confusion or of misunderstanding as to affiliation,
`connection or association with, or certification by, another, 73 P.S. § 201-2(4)(iii);
`and
`
`c. Engaging in any other fraudulent or deceptive conduct which creates a likelihood
`of confusion or of misunderstanding, 73 P.S. § 201-2(4)(xxi).
`
`The Commonwealth believes that the citizens of the Commonwealth are suffering
`
`82.
`
`and will continue to suffer harm unless the acts and practices complained of herein are
`
`permanently enjoined.
`
`
`PRAYER FOR RELIEF
`
`WHEREFORE, the Commonwealth respectfully requests this Honorable Court to issue
`
`
`
`an Order:
`
`Declaring Defendants’ conduct, as set forth in this Complaint, to be in
`violation of the Consumer Protection Law.
`
`Permanently enjoining Defendants and all other persons acting on their
`behalf, directly or indirectly, from violating the Consumer Protection Law.
`
`Directing Defendants, pursuant to Section 201-8(b) of the Consumer
`Protection Law, to pay civil penalties in the amount of one thousand and
`00/100 dollars ($1,000.00) for each and every violation of the Consumer
`Protection Law, which will increase to three thousand and 00/100 dollars
`($3,000.00) for each violation involving a victim age sixty (60) or older;
`
`Requiring Defendants to pay the Commonwealth for the costs of its
`investigation and prosecution of this action;
`
`A.
`
`
`B.
`
`C.
`
`
`D.
`
`
`
`21
`
`
`
`
`
`
`
`
`
`
`

`

`Case 2:22-cv-01551-NR Document 1 Filed 11/02/22 Page 23 of 23