| DEBRA A. VALENTINE General Counsel EVAN SIEGEL JOHN JACOBS (CA Bar # 134154) FEDERAL TRADE COMMISSION FEDERAL TRADE COMMISSION, Plaintiff, v. CLARENDON HOUSE, Inc., a corporation doing business as National Data Service; FIRST NATIONAL DATA GROUP, Inc., a corporation doing business as National Data Service; and PETER M. DEARDEN, individually and doing business as National Data Service, Defendants. Civ. No. COMPLAINT FOR INJUNCTION Plaintiff, the Federal Trade Commission (“FTC” or “Commission”), for its 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 57b, and the Telemarketing and Consumer Fraud and Abuse Prevention Act (“Telemarketing Act”), 15 U.S.C. § 6101 et seq., to secure a permanent injunction, preliminary injunctive relief, rescission of contracts, restitution, disgorgement, appointment of a receiver, and other equitable relief for defendants' deceptive 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” ("the Telemarketing Rule" or "the Rule"), 16 C.F.R. Part 310. JURISDICTION AND VENUE 2. This Court has jurisdiction over this matter pursuant to 15 U.S.C. §§ 45(a), 53(b), 57b, 6102(c), and 6105(b); and 28 U.S.C. §§ 1331, 1337(a), and 1345. 3. Venue in the United States District Court for the Central District of California is proper under 28 U.S.C. §§ 1391(b) and (c), as well as under 15 U.S.C. §§ 53(b) and 6103(e). THE PARTIES 4. Plaintiff, the Federal Trade Commission, is an independent agency of the United States Government created by statute. 15 U.S.C. § 41 et seq. The Commission is charged, inter alia, with enforcement of 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 Commission also enforces the Telemarketing Rule, 16 C.F.R. Part 310, which prohibits deceptive or abusive telemarketing acts or practices. The Commission is authorized to initiate federal district court proceedings, by its own attorneys, to enjoin violations of the FTC Act and the Telemarketing Rule and to secure such equitable relief as may be appropriate in each case, including restitution for injured consumers. 15 U.S.C. §§ 53(b), 57b, 6102(c), and 6105(b). 5. Defendant Clarendon House, Inc. ("Clarendon"), is incorporated in the state of California and does or has done business as National Data Services ("NDS"). Its principal place of business is 1919 State Street, Suite 112, Santa Barbara, California 93101. Clarendon transacts business in the Central District of California. 6. Defendant First National Data Group, Inc. ("First National"), is incorporated in the state of California and does or has done business as NDS. Its principal place of business is 1919 State Street, Suite 108, Santa Barbara, California 93101. First National transacts business in the Central District of California. 7. Defendant Peter M. Dearden does or has done business as NDS, an unincorporated business entity, and is its owner and principal. Dearden also is president of defendant Clarendon House, Inc. At all times material to this complaint, acting alone or in concert with others, he has formulated, directed, controlled, or participated in the acts and practices of NDS and defendants Clarendon and First National, including the acts and practices set forth in the complaint. He resides and transacts business in the Central District of California. COMMERCE 8. 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’ COURSE OF CONDUCT 9. Since at least 1994, defendants have engaged in a scheme to defraud thousands of consumers throughout the United States through advertisements, direct-mail solicitations, and telemarketing. 10. In their advertisements, direct-mail solicitations, and telemarketing, defendants claim that they provide information enabling consumers to find and to purchase automobiles, homes, boats, cellular phones, computers, and other items at a fraction of their market values. 11. Defendants sell their information about bargain cars, houses, and consumer goods in the form of "how to" guides. Typically, defendants sell each guide for $69.95, plus shipping and handling. Defendants charge consumers by billing their credit cards or through the use of demand drafts that directly debit funds from consumers’ checking accounts. 12. The "how to" guides instruct consumers how to obtain "fantastic bargains" on seized cars and other items ("auction guide") and on foreclosed homes ("foreclosed-property guide"). 13. Defendants also have advertised and marketed a guide on how to obtain employment by typing at home ("home-typing guide"). 14. Defendants promote their "how to" guides through a number of media, including local and national newspapers and magazines, direct-mail solicitations, and on the Internet. 15. A typical direct-mail solicitation used by the defendants is a color flyer that advertises both seized cars and foreclosed homes. On one side of the flyer is a picture of a red, mint-condition Porsche 911. Below the Porsche, the flyer states: Seized Cars from $350
To Receive Current Auction Listings 16. The other side of a typical solicitation flyer depicts a well-maintained, middle-class home fronted with a large yard and a white picket fence. Overlaying the picture of the house are the words "NOW AVAILABLE." Below the picture are the statements: Foreclosed Homes
To Receive Current Property Listings In Your Area 17. Consumers who call the toll-free numbers provided in the advertisements and solicitations reach sales representatives at NDS. The NDS sales representatives use scripted sales pitches when taking incoming calls from consumers. The NDS sales representatives generally ask consumers which advertisement or solicitation they are responding to. Based upon the consumers’ answers, the sales representatives proceed with the corresponding, scripted sales pitch. 18. All the scripted sales pitches include "success stories" purportedly experienced by consumers who use the "how to" guides. No last names of these alleged consumers appear on the scripts. Examples of the "success stories," which NDS sales representatives use to close their sales, include:
19. The scripted sales pitches also include text that NDS’s sales representatives use to communicate to consumers the results they can expect from the auction and foreclosed-property guides. Examples of such statements are:
20. Defendants, on a frequent basis, charge consumers for guides that the consumers did not agree to purchase. 21. Defendants make unauthorized charges to consumers’ charge cards or checking accounts in one of two ways. First, defendants obtain consumers’ credit card or bank account information under false pretenses -- for example, by claiming that the information is needed for "verification" purposes or to "hold" an order until a later date -- and then using the information to process an order. Consumers who give defendants their credit card or checking account information for "verification purposes" or to "hold" an order will, within a few weeks, receive one or more guides in the mail. These consumers also discover that their credit cards or checking accounts were charged the full purchase price for these guides. 22. The defendants also charge consumers for materials they did not agree to purchase by aggressively using a practice referred to by defendants themselves as "doubling" or "tripling." 23. When consumers agree to purchase one of defendants’ guides, the NDS sales representatives, after already having obtained the consumers’ credit card or checking account information, tells the consumers about one or more of the defendants’ other "how to" guides. The sales representatives urge upon the consumers the need for the additional guide(s). The sales representatives do not disclose that there is a charge of $69.95 for each additional guide. 24. Some NDS sales representatives just send the additional guides and bill consumers for them. Other sales representatives wait for consumers to indicate some sort of assent. Consumers are agreeing, however, only to additional information which they think is free. After they receive a subsequent billing or checking statement, consumers learn that they have been charged for the additional guide(s). 25. In some cases in which consumers are doubled or tripled, the NDS sales representatives do disclose the charge for the additional guide(s), but do it very quickly or in a way so that consumers do not realize that they are being charged until after the telephone conversations have ended. 26. Once consumers’ initial phone calls with NDS end, consumers have no way to cancel orders, even if they did not authorize the orders. Consumers who call NDS back are told that the orders have been "processed." These consumers are instructed to wait until the materials arrive in the mail and then to follow the return instructions which are included with the guides. 27. When consumers call for information about defendants’ "how to" guides, defendants follow the policy and practice of leading consumers to believe that defendants will provide full refunds to any dissatisfied consumers. 28. NDS’s sales representatives use the promise of a money- back guarantee to induce consumers to purchase or "try-out" the "how to" guides. Defendants’ scripted sales pitches instruct sales representatives to recite, when dealing with a consumer who does not want to commit to a purchase, the following:
29. When consumers receive defendants’ guides in the mail they are accompanied by letters that, for the first time, disclose various conditions for obtaining refunds. The letter that accompanies the auction guide states:
30. The letter that accompanies the foreclosed-property guide states:
31. The letter that accompanies the home-typing guide states:
32. Consumers who call NDS’s Customer Service department to obtain authorization numbers are told that they cannot have authorization numbers until they show not only that they were not successful using the "how to" guides, but also that they have met the conditions set forth in the fine print, i.e., provide NDS with receipts from auctions showing that they did not buy anything at auctions, copies of rejected applications or bids for houses, or copies of written negative responses from potential employers. Defendants essentially ask consumers to prove a negative: that they could not buy a house, purchase a car, or get a job. 33. The number of receipts or copies that NDS requires from consumers seeking refunds varies depending on whom the consumers speak with at NDS. VIOLATIONS OF SECTION 5 OF THE FTC ACT COUNT ONE 34. In numerous instances, in the course of offering for sale or selling their auction guides, defendants have represented, expressly or by implication, that consumers who purchase their publications on seized cars and other items frequently are able to purchase vehicles in good condition for a fraction of their wholesale values, including as little as $350. 35. In truth and in fact, consumers who purchase defendants’ publications on seized cars rarely, if ever, are able to purchase vehicles in good condition for a fraction of their wholesale values, including as little as $350. Indeed, while agencies such as the United States Marshals and the United States Customs Service do regularly seize vehicles, including vehicles in good condition, they rarely, if ever, sell those vehicles to the general public at prices substantially below their wholesale values. 36. Therefore, the representation set forth in Paragraph 34 was, and is, false and misleading and constitutes a deceptive act or practice in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). COUNT TWO 37. Defendants have represented, expressly or by implication, that they possessed and relied upon a reasonable basis that substantiated the representation set forth in Paragraph 34, at the time the representation was made. 38. In truth and in fact, defendants did not possess and rely upon a reasonable basis that substantiated the representation set forth in Paragraph 34, at the time the representation was made. 39. Therefore, the representation set forth in Paragraph 37 was, and is, false and misleading and constitutes a deceptive act or practice in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). COUNT THREE 40. In numerous instances, in the course of offering for sale or selling their foreclosed-property guides, defendants have represented, expressly or by implication, that consumers who purchase their publications on foreclosed homes frequently are able to purchase foreclosed homes in reasonably good condition for substantially below their market values. 41. In truth and in fact, consumers who purchase defendants’ publications on foreclosed homes rarely, if ever, are able to purchase foreclosed homes in reasonably good condition for substantially below their market values. Indeed, entities such as the Department of Housing and Urban Development ("HUD"), Fannie Mae, and Freddie Mac that regularly foreclose on well-kept homes that are in good condition rarely, if ever, sell those homes to the general public at prices substantially below their market values. 42. Therefore, the representation set forth in Paragraph 40 was, and is, false and misleading and constitutes a deceptive act or practice in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). COUNT FOUR 43. Defendants have represented, expressly or by implication, that they possessed and relied upon a reasonable basis that substantiated the representation set forth in Paragraph 40, at the time the representation was made. 44. In truth and in fact, defendants did not possess and rely upon a reasonable basis that substantiated the representation set forth in Paragraph 40, at the time the representation was made. 45. Therefore, the representation set forth in Paragraph 43 was, and is, false and misleading and constitutes a deceptive act or practice in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). COUNT FIVE 46. In numerous instances, in the course of offering for sale or selling their home-typing guides, defendants have represented, expressly or by implication, that consumers who purchase such guides will receive listings of businesses currently seeking to hire individuals to type at home for such businesses. 47. In truth and in fact, in numerous instances, consumers who purchase defendants’ home-typing guides do not receive listings of businesses currently seeking to hire individuals to type at home for such businesses. They instead receive only a list of businesses which do not need or use at-home typists, never previously hired at-home typists, have no intention of hiring at-home typists in the future, and have never heard of defendants. 48. Therefore, the representation set forth in Paragraph 46 was, and is, false and misleading and constitutes a deceptive act or practice in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). COUNT SIX 49. In numerous instances, in the course of offering for sale or selling their "how to" guides, defendants have represented, expressly or by implication, that they will not use consumers’ checking account or credit card information for the purposes of debiting consumers’ bank accounts or billing consumers’ credit card accounts. 50. In truth and in fact, in numerous instances, defendants do use consumers’ checking account or credit card information for the purposes of debiting consumers’ bank accounts or billing consumers’ credit card accounts without the consumers’ authorization. 51. Therefore, the representation set forth in Paragraph 49 was, and is, false and misleading and constitutes a deceptive act or practice in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). COUNT SEVEN 52. In numerous instances, in the course of offering for sale or selling their "how to" guides, defendants have represented, expressly or by implication, that they will send consumers a single guide and that the cost of the product will be charged to consumers’ checking or credit card accounts. 53. Defendants have failed to disclose that, in truth and in fact, they send consumers additional guides, such as a housing guide when the consumer has ordered only an automobile guide, and that defendants charge consumers’ checking or credit card accounts for these additional guides. This fact would be material to consumers in their decisions to purchase defendants’ products. 54. In light of the representation made in Paragraph 52, above, the failure to disclose that defendants make additional charges to consumers’ checking or credit card accounts is a deceptive act or practice in violation of Section 5 of the FTC Act, 15 U.S.C. § 45(a). COUNT EIGHT 55. In numerous instances, in the course of offering for sale or selling their "how to" guides, defendants have represented, expressly or by implication, that they will provide refunds to consumers upon request. 56. In truth and in fact, defendants have failed to disclose that they impose additional conditions that discourage consumers from seeking refunds or restrict the availability of refunds, including, for example, the condition that consumers attend auctions and obtain proof that they bought no items at such auctions. These conditions would be material to consumers in their decisions to purchase defendants’ products and to dissatisfied consumers in their decisions to seek refunds. 57. In light of the representation made in Paragraph 55, above, the failure to disclose that defendants will communicate and impose additional refund conditions is a deceptive act or practice in violation of Section 5 of the FTC Act, 15 U.S.C. § 45(a). THE TELEMARKETING RULE 58. In the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§ 6101, et seq., Congress directed the FTC to prescribe rules prohibiting deceptive and abusive telemarketing acts or practices. On August 16, 1995, the Commission promulgated the Telemarketing Sales Rule (“Telemarketing Rule” or “the Rule”), 16 C.F.R. Part 310, with a Statement of Basis and Purpose, 60 Fed. Reg. 43842 (Aug. 23, 1995). The Rule became effective December 31, 1995. 59. Defendants are "sellers" or "telemarketers" engaged in "telemarketing," as those terms are defined in the Telemarketing Rule, 16 C.F.R. §§ 310.2(r), (t), and (u). 60. Telephone calls initiated by a customer in response to direct mail solicitations are covered by the Rule when the direct mail solicitations do not clearly, conspicuously, and truthfully disclose all material information listed in § 310.3(a)(1) of the Rule, 16 C.F.R. §310.6(f), including the total costs to purchase, receive, or use, and the quantity of, any goods or services that are the subject of the sales offer; and all material restrictions, limitations, or conditions to purchase, receive, or use the goods that are the subject of the sales offer. 16 C.F.R. § 310.3(a)(1). 61. Defendants’ direct mail solicitations do not include any of the material information described in § 310.3(a)(1) of the Rule or in Paragraph 60. 62. The Rule requires sellers or telemarketers to disclose, in a clear and conspicuous manner, before a customer pays for goods or services offered, the total costs to purchase, receive, or use, and the quantity of, any goods or services that are the subject of the sales offer. 16 C.F.R. § 310.3(a)(1)(i). 63. The Rule also requires sellers or telemarketers who make representations about their refund, cancellation, exchange, or repurchase policies to disclose, in a clear and conspicuous manner, before a customer pays for goods or services offered, a statement of all material terms and conditions of the seller’s or telemarketer’s refund, cancellation, exchange, or repurchase policy. 16 C.F.R. § 310.3(a)(1)(iii). 64. The Rule prohibits any seller or telemarketer from misrepresenting, directly or by implication, any material aspect of the performance, efficacy, nature, or central characteristics of goods or services that are the subject of a sales offer. 16 C.F.R. § 310.3(a)(2)(iii). 65. The Telemarketing Rule also prohibits any seller or telemarketer from making a false or misleading statement to induce any person to pay for goods or services. 16 C.F.R. § 310.3(a)(4). 66. Pursuant to Section 3(c) of the Telemarketing Act, 15 U.S.C. § 6102(c), and Section 18(d)(3) of the FTC Act, 15 U.S.C. § 57a(d)(3), violations of the Telemarketing Rule constitute unfair or deceptive acts or practices in or affecting commerce, in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). COUNT NINE 67. In numerous instances, in connection with telemarketing offers of auction guides, defendants have misrepresented, directly or by implication, that consumers who purchase their publications on seized cars will receive listings of dates, times, and places of upcoming auctions located within a reasonable distance of where the consumers work or live, thereby violating Section 310.3(a)(2)(iii) of the Telemarketing Sales Rule, 16 C.F.R. § 310.3(a)(2)(iii). COUNT TEN 68. In numerous instances, in connection with telemarketing offers of auction and foreclosed-property guides, defendants have made false or misleading statements to induce the purchase of their guides that include, but are not limited to, statements that:
COUNT ELEVEN 69. In numerous instances, in connection with telemarketing offers of their auction and foreclosed property guides, defendants have failed to disclose in a clear and conspicuous manner, before consumers paid for the guides, that defendants will send additional products to consumers and will charge consumers’ checking or credit card accounts for amounts above those that customers had agreed to pay, violating Section 310.3(a)(1)(i) of the Telemarketing Sales Rule, 16 C.F.R. § 310.3(a)(1)(i). COUNT TWELVE 70. In numerous instances, in connection with telemarketing offers of their auction and foreclosed property guides, defendants have made representations about their refund policy but have failed to disclose in a clear and conspicuous manner, before consumers paid for the products, that they impose conditions that discourage consumers from seeking refunds or restrict the availability of refunds, thereby violating Section 310.3(a)(1)(iii) of the Telemarketing Sales Rule, 16 C.F.R. § 310.3(a)(1)(iii). CONSUMER INJURY 71. Consumers throughout the United States have suffered and continue to suffer substantial monetary loss as a result of defendants' unlawful acts or practices. In addition, defendants have been unjustly enriched as a result of their unlawful practices. Absent injunctive relief by this Court, defendants are likely to continue to injure consumers, reap unjust enrichment, and harm the public interest. THIS COURT'S POWER TO GRANT RELIEF 72. Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), empowers this Court to grant injunctive and other ancillary relief, including consumer redress, disgorgement, and restitution to prevent and remedy any violations of any provision of law enforced by the Commission. 73. Section 19 of the FTC Act, 15 U.S.C. § 57b, and Section 6(b) of the Telemarketing Act, 15 U.S.C. § 6105(b), authorize this Court to grant such relief as the Court finds necessary to redress injury to consumers or other persons resulting from defendants’ violations of the Telemarketing Rule, including the rescission and reformation of contracts, and the refund of money. 74. This Court, in the exercise of its equitable jurisdiction, may award other ancillary relief to remedy injury caused by defendants’ law violations. PRAYER FOR RELIEF WHEREFORE, plaintiff requests that this Court, as authorized by Sections 13(b) and 19 of the FTC Act, 15 U.S.C. §§ 53(b) and 57b, Sections 4(a) and 6(b) of the Telemarketing Act, 15 U.S.C. §§ 6103(a) and 6105(b), and pursuant to its own equitable powers:
Respectfully Submitted, DEBRA A. VALENTINE DATED: __________________ __________________________ |