| DEBRA A. VALENTINE General Counsel THERESA M. McGREW RAYMOND E. McKOWN (CA Bar #150975) Attorneys for Plaintiff UNITED STATES DISTRICT COURT FEDERAL TRADE COMMISSION, Plaintiff, v. WEST COAST PUBLICATIONS, LLC., and GILBERTO LOPEZ, Defendants. CIVIL NO. COMPLAINT FOR INJUNCTIVE AND OTHER EQUITABLE RELIEF Plaintiff, the Federal Trade Commission ("FTC" or "Commission") for its Complaint alleges: 1. The Commission 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 Section 410(b) of the Credit Repair Organizations Act, 15 U.S.C. § 1679h(b), to obtain preliminary and permanent injunctive relief, restitution, rescission, disgorgement and other equitable relief for defendants' deceptive acts or practices in connection with the sale and offering for sale of credit repair products in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and Section 404(a)(2) of the Credit Repair Organizations Act, 15 U.S.C. § 1679b(a)(2). JURISDICTION AND VENUE 2. This Court has jurisdiction of this matter pursuant to 28 U.S.C. §§ 1331, 1337(a), and 1345, and 15 U.S.C. §§ 53(b), 57b, and 1679h(b). 3. Venue is proper under 28 U.S.C. § 1391 and 15 U.S.C. § 53(b). 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 Credit Repair Organizations Act. 15 U.S.C. §§ 1679h(a). The Commission is authorized to initiate federal district court proceedings, by its own attorneys, to enjoin violations of the FTC Act and the Credit Repair Organizations Act in order to secure such equitable relief, including consumer redress, as may be appropriate in each case. 15 U.S.C. §§ 53(b), 57b, and 1679h(b). 5. Defendant West Coast Publications, LLC, is a California limited liability company, with its office and principal place of business located at 9424 Sultana Avenue, Fontana, California 92335. Defendant West Coast Publications, LLC, transacts business in this District. 6. Defendant Gilberto Lopez is a principal of defendant West Coast Publications, LLC. His business address is the same as that of defendant West Coast Publications, LLC. In connection with the matters alleged herein, defendant Lopez transacts business in this District. COMMERCE 7. At all times relevant to this Complaint, defendants have maintained a substantial course of trade in the offering for sale and selling of credit repair products, in or affecting commerce, as "commerce" is defined in Section 4 of the FTC Act, 15 U.S.C. § 44. DEFENDANTS' BUSINESS PRACTICES 8. Since at least August 1998, defendants have advertised, promoted, offered for sale, and sold credit repair products to consumers through the use of the Internet, including the use of unsolicited commercial electronic messages ("e-mail"), popularly known as "spamming." Defendants' e-mail messages contain hypertext links to an Internet site on the world wide web. 9. Defendants have claimed that they can improve consumers' credit histories, credit records, or credit ratings by assisting them in establishing new credit files. Defendants further claim that creating new credit files is legal. 10. Typical and illustrative of defendants' e-mail claims about their credit repair products are:
11. Typical and illustrative of the claims found on defendants' world wide web Internet site hyperlinked from the e-mail are the claims set forth above, and the following claims: Virtually Wipe Out All the Old Bad Credit On Your File Instantly!
* * * 100% ETHICAL - 100% WORRY FREE
It Doesn't Matter, Because Your Credit File Will Be Completely New And Completely Independent Of Any Negative Past File!
DON'T BE FOOLED BY SIMILAR "NEW CREDIT FILE" KITS! I've seen the other new credit file kits out there. They lead you to file for an EIN (Employment Identification Number, Form SS-4) or TIN (Taxpayer Identification Number, Form W-9) with the IRS. It's illegal to use these numbers to apply for new credit. This is not what I ask you to do. I just gave you the competition's product. VIOLATIONS OF THE CREDIT REPAIR ORGANIZATIONS ACT 12. The Credit Repair Organizations Act, 15 U.S.C. §§ 1679a-j (1997), was enacted on September 30, 1996, and has been in full force and effect since April 1, 1997. 13. Section 404(a)(2) of the Credit Repair Organizations Act prohibits all persons from making any statement, or counseling or advising any consumer to make any statement, the intended effect of which is to alter the consumer's identification to prevent the display of the consumer's credit record, history, or rating for the purpose of concealing adverse information that is accurate and not obsolete to any consumer reporting agency, as defined in 15 U.S.C. § 1681(f), or to any person who has extended credit to the consumer or to whom the consumer has applied or is applying for an extension of credit. 15 U.S.C. § 1679b(a)(2). 14. Pursuant to Section 410(b)(1) of the Credit Repair Organizations Act, 15 U.S.C. § 1679h(b)(1), any violation of any requirement or prohibition of the Credit Repair Organizations Act constitutes an unfair and deceptive act or practice in commerce in violation of Section 5(a) of the FTC Act, 15 U.S.C.§ 45(a). COUNT ONE 15. In numerous instances, defendants have made statements to consumers or counseled or advised consumers to make statements, the intended effect of which has been to alter the consumer's identification to prevent the display of the consumer's credit record, history, or rating for the purpose of concealing adverse information that is accurate and not obsolete to consumer reporting agencies, as that term is defined in 15 U.S.C. § 1681(f), or to persons who have extended credit to those consumers or to whom those consumers have applied or are applying for extensions of credit. 16. Defendants have thereby violated Section 404(a)(2) of the Credit Repair Organizations Act, 15 U.S.C. § 1679b(a)(2). VIOLATIONS OF THE FEDERAL TRADE COMMISSION ACT COUNT TWO 17. In connection with the advertising, marketing, promotion, offering for sale, or sale of credit repair products, to induce consumers to purchase their products defendants have, expressly or by implication, represented that through the use of their products, consumers can legally alter their identifications to conceal adverse credit information from consumers' credit records, credit histories, or credit ratings by obtaining new credit identification numbers to use, instead of their Social Security numbers, for credit purposes. 18. In truth and in fact, through the use of defendants' products, consumers cannot legally alter their identifications to conceal adverse credit information from their credit records, credit histories, or credit ratings by obtaining new credit identification numbers to use, instead of their Social Security numbers, for credit purposes. 19. Therefore, the representation set forth in Paragraph 17 is false and misleading and constitutes a deceptive act or practice in or affecting commerce, in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). CONSUMER INJURY 20. Consumers throughout the United States have suffered or are likely to suffer substantial monetary loss as a result of defendants' unlawful acts or practices. Absent injunctive relief by this Court, defendants are likely to continue to injure consumers and harm the public interest. THIS COURT'S POWER TO GRANT RELIEF 21. Sections 13(b) and 19 of the FTC Act, 15 U.S.C. §§ 53(b) and 57b, and Section 410(b) of the Credit Repair Organizations Act, 15 U.S.C. § 1679h(b), empower this Court to issue a permanent injunction against defendants' violations of the Credit Repair Organizations Act and the FTC Act and, in the exercise of its equitable jurisdiction, to order such ancillary relief as preliminary injunction, rescission, restitution, disgorgement of profits resulting from defendants' unlawful acts or practices, and other remedial measures. PRAYER FOR RELIEF WHEREFORE, plaintiff requests that this Court, as authorized by Section 410(b) of the Credit Repair Organizations Act, 15 U.S.C. § 1679h(b), Sections 13(b) and 19 of the FTC Act, 15 U.S.C. §§ 53(b) and 57b, and pursuant to its own equitable powers:
Respectfully Submitted, DEBRA A. VALENTINE DATED: THERESA M. McGREW RAYMOND E. McKOWN (CA Bar #150975) |