UNITED STATES DISTRICT COURT UNITED STATES OF AMERICA, Plaintiff, v. TRANS UNION LLC, Defendant. CIVIL ACTION NO. CONSENT DECREE WHEREAS: Plaintiff, the United States of America, has commenced this action by filing the Complaint herein; defendant has waived service of the Summons and Complaint; the parties have been represented by attorneys whose names appear hereafter; and the parties have agreed to settlement of this action upon the following terms and conditions, without adjudication of any issue of fact or law. This Consent Decree is for settlement purposes only and neither its execution by the parties nor its entry by the Court constitutes an admission by defendant that any law has been violated as alleged by the plaintiff, that there are valid grounds for the imposition of a civil penalty sought by the plaintiff, or that the facts alleged by the plaintiff, other than jurisdictional facts, are true. Defendant specifically denies the plaintiff's allegations and denies that it has violated any law as alleged by the plaintiff or otherwise. THEREFORE, on the joint motion of plaintiff and defendant, it is hereby ORDERED, ADJUDGED, AND DECREED as follows: 1. This Court has jurisdiction of the subject matter and of the parties. 2. The Complaint raises a legal dispute over which the Court has jurisdiction under Sections 5(a)(1), 9, 13(b) and 16(a) of the Federal Trade Commission Act, 15 U.S.C. §§ 45(a)(1), 49, 53(b) and 56(a), and under the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681u. DEFINITIONS As used in this Consent Decree: 3. the Fair Credit Reporting Act, or FCRA, refers to 15 U.S.C. §§ 1681-1681u, as amended; 4. the term "defendant" means Trans Union LLC, its successors and assigns, in its capacity as a consumer reporting agency that compiles and maintains files on consumers on a nationwide basis, within the meaning of 15 U.S.C. § 1681g(c)(1)(B); 5. the term "consumer disclosure" means any written disclosure of information in the consumer's file by the defendant to the consumer in accordance with Section 609 of the FCRA, 15 U.S.C.§ 1681g; 6. the term "qualified caller" or any derivation thereof means a consumer who has received a consumer disclosure which contains a telephone number in accordance with Section 609(c)(1)(B) of the FCRA, 15 U.S.C. § 1681g(c)(1)(B). Defendant may utilize reasonable methodologies to confirm that a caller is a qualified caller; 7. the term "normal business hours" means Monday through Friday, 8:30 A.M. to 4:30 P.M. in the time zone in which a call originates, excluding federal holidays and other holidays regularly observed by defendant. Commencing January 17, 2000, defendant must provide notice of its normal business hours on all consumer disclosures; 8. the term "measurement period" means normal business hours during each contiguous two week interval. The first measurement period shall commence on January 17, 2000. There are twenty-six (26) measurement periods in a year; 9. the term "blocked call" or any derivation thereof means a call that
10. the term "calls attempted" or any derivation thereof means a telephone call initiated by dialing a telephone number that was printed on a consumer disclosure in accordance with Section 609(c)(1)(B) of the FCRA, including the dialing of telephone numbers that were printed on consumer disclosures received by the consumer within sixty (60) calendar days prior to placing the call; 11. the term "blocked call rate" means the number of blocked calls during the measurement period divided by the total calls attempted during the measurement period; 12. the term "average speed of answer" means the average time interval between the earliest point that qualified callers select an option to speak to a live agent and when qualified callers reach a live agent. Average speed of answer is calculated as the sum of the time it takes for each call from a qualified caller during the measurement period to reach a live agent from the earliest point the caller selects an option to speak to a live agent, divided by the total number of calls from qualified callers that select an option to speak to a live agent during the measurement period; 13. the term "audit interval" or any derivation thereof means a set of thirteen contiguous measurement periods. Audit intervals shall commence and conclude on the dates stated in Appendix C to this Consent Decree. MONETARY SETTLEMENT 14. Defendant shall pay to plaintiff the amount of one million dollars ($1,000,000.00), which shall be deemed to satisfy completely plaintiff's claim in this action for a civil penalty pursuant to Section 621(a)(2)(A) of the FCRA, 15 U.S.C. § 1681s(a)(2)(A) and Section 5(m)(1)(A) of the Federal Trade Commission Act, 15 U.S.C. § 45(m)(1)(A). 15. Defendant shall make the payment required by paragraph 14 within five (5) business days of the date of entry of this Consent Decree by electronic fund transfer in accordance with the instructions provided by: The Office of Consumer Litigation, Civil Division, U.S. Department of Justice, Washington, D.C. 20530, for appropriate disposition. 16. In the event of any default in payment, which default continues for ten (10) calendar days beyond the due date of payment, the entire unpaid payment, together with interest, as computed pursuant to 28 U.S.C. § 1961 from the date of default to the date of payment, shall immediately become due and payable. INJUNCTION 17. Defendant, and its officers, agents, servants, employees, and representatives, and all persons in active concert or participation with any one or more of them who receive actual notice of this Consent Decree by personal service or otherwise, are hereby enjoined from violating, directly or through any corporation, subsidiary, division, or other device, Section 609(c)(1)(B) of the FCRA, 15 U.S.C. § 1681g(c)(1)(B) as amended, or as Section 609(c)(1)(B) may be amended hereafter. 18. For a period of five (5) years commencing on January 17, 2000, defendant shall maintain the following levels of service which, for that five year period and solely for purposes of this Consent Decree, also shall be deemed to satisfy defendant's obligations under paragraph 17 of this Consent Decree for all telephone numbers printed on consumer disclosures pursuant to Section 609(c)(1)(B) of the FCRA, 15 U.S.C. § 1681g(c)(1)(B):
19. In computing the blocked call rate and the average speed of answer over each measurement period, the first business day following the day upon which a federal holiday is observed shall not be included. 20. Defendant shall not be deemed in violation of paragraph 17 or paragraph 18 of this Consent Decree for any period prior to January 17, 2000, provided that defendant makes good faith efforts to comply with the levels of service specified in paragraph 18 during that time (excluding compliance with paragraph 26 of this Consent Decree). 21. Defendant shall not be deemed in violation of paragraph 17 or paragraph 18 of this Consent Decree if circumstances beyond defendant's reasonable control (such as acts of God, telecommunications interruptions, equipment malfunctions, labor shortages caused by illness or organized labor action, or significant increases in call volume due to unforeseen circumstances) preclude it from complying with paragraph 17 or paragraph 18, provided that the defendant takes reasonable steps to minimize the impact of these events on its toll-free telephone number service and promptly restores service to levels that comply with this Consent Decree. 22. In addition to the circumstances in paragraph 21 of this Consent Decree, prior to June 5, 2000, failure to comply with paragraphs 17 or 18 of this Consent Decree shall not be a violation of said paragraphs provided that defendant demonstrates that such failure results from a significant increase in the number of calls attempted from qualified callers that is directly related to Y2K (i.e., the transition from the year 1999 to the year 2000) and was not reasonably predictable. Defendant must use good faith efforts to promptly restore service to levels that comply with paragraph 18. 23. Defendant shall be deemed to be in compliance with paragraph 18 of this Consent Decree if it meets the levels of service stated in paragraph 18 during twelve (12) or more of the thirteen (13) measurement periods in each audit interval. 24. In the event that defendant's blocked call rate exceeds ten percent (10%) in any measurement period, defendant shall be deemed in compliance with paragraph 18 of this Consent Decree for that measurement period only if defendant can prove that it did not block more than ten percent (10%) of the calls attempted by qualified callers in that measurement period. 25. In complying with paragraph 18 of this Consent Decree, defendant shall maintain personnel accessible to consumers for each telephone number printed on consumer disclosures in accordance with Section 609(c)(1)(B) of the FCRA, 15 U.S.C. § 1681g(c)(1)(B), for a period of at least sixty (60) calendar days after that telephone number is no longer printed on consumer disclosures. 26. Commencing on January 17, 2000, defendant shall not block any calls during normal business hours based upon telephone number of origin, including, but not limited to, area code, geographic point of origin within the United States of America, or specific telephone number, except for calls from known credit repair organizations as defined in 15 U.S.C. § 1679a(3). With respect to this exception, defendant shall bear the burden of proof to establish that the originating telephone number of any call blocked was a known credit repair organization at the time that the call was blocked. 27. Defendant shall not deny callers without Touchtone™ or dual-tone multifrequency capability the ability to reach a live agent. 28. Defendant shall audit its compliance with this Consent Decree for each audit interval. Defendant shall provide a report of the results of such audit to the Associate Director, Division of Financial Practices, Federal Trade Commission, 600 Pennsylvania Avenue, NW, Washington D.C. 20580, in the form and substance delineated in Appendix A to this Consent Decree, within sixty (60) calendar days of the close of each audit interval. A corporate officer of defendant shall certify, in the form delineated in Appendix B to this Consent Decree, that each audit and report was prepared in accordance with this Consent Decree and is true, complete, and accurate. 29. Upon reasonable request, defendant shall make knowledgeable personnel available to the Federal Trade Commission or the United States Department of Justice to explain or clarify its audit procedures, report, and/or documents retained pursuant to this Consent Decree. 30. The Federal Trade Commission or the United States Department of Justice may, upon reasonable notice and at plaintiff's expense, either directly or through an outside auditor, audit all documents in defendant's custody and control relating to defendant's compliance with this Consent Decree. 31. For a period of three (3) years after the conclusion of each audit interval, defendant shall maintain and make available to the Federal Trade Commission or the United States Department of Justice, within fourteen (14) business days of receiving a written request by the Federal Trade Commission or the United States Department of Justice, business records demonstrating compliance with the terms and provisions of this Consent Decree. 32. Materials submitted pursuant to this Consent Decree and designated confidential shall be accorded the protections accorded to materials designated confidential under Federal Trade Commission Rule 4.10(e), 16 C.F.R. § 4.10(e). 33. If the FCRA is amended (or other similar federal legislation enacted) or the FTC issues any interpretation of the FCRA, relating to any obligation imposed on defendant herein, which creates any new requirement that directly conflicts with any obligation imposed on defendant by this Consent Decree, defendant may conform the manner in which it conducts its business to the requirements of such new statutory provision or interpretation, provided however that, defendant shall notify the FTC promptly if it intends to change its conduct as provided for in this paragraph, and provided further that nothing in this provision shall limit the right of the FTC to challenge defendant's actions hereunder and to seek enforcement of defendant's obligations under this Consent Decree. For purposes of this Consent Decree, and by way of example only, a "direct conflict" between this Consent Decree and a new statutory amendment or interpretation shall include a requirement in any such amendment or interpretation that a consumer reporting agency that compiles and maintains files on consumers on a nationwide basis maintain a level of service that is different than the level of service specified in paragraph 18. PERSONS AFFECTED: CONTINUING JURISDICTION 34. Defendant shall, within thirty (30) calendar days of the entry of this Consent Decree, provide a copy of this Consent Decree and the FCRA to each of defendant's officers, agents, servants, and employees having administrative or policy responsibilities with respect to the subject matter of this Consent Decree; secure from each such person a signed statement acknowledging receipt of a copy of this Consent Decree and the FCRA; and, within ten (10) calendar days of complying with this paragraph, file an affidavit with the Court; and serve the Federal Trade Commission, by mailing a copy thereof to the Associate Director for Financial Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue, N.W., Washington DC 20580, setting forth the fact and manner of its compliance, including the name and title of each person to whom a copy of the Consent Decree has been provided. 35. Defendant shall notify the Associate Director for Financial Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue, N.W., Washington, DC 20580, at least thirty (30) calendar days prior to any change in defendant's business that may affect defendant's obligations under this Consent Decree, including, but not limited to, merger, incorporation, dissolution, assignment, sale which results in the emergence of a successor corporation, and the creation or dissolution of a subsidiary or parent. 36. Defendant is hereby required, in accordance with 31 U.S.C. § 7701, to furnish to the Federal Trade Commission its taxpayer identifying numbers, which shall be used for purposes of collecting and reporting on any delinquent amount arising out of its relationship with the government. 37. This Consent Decree shall not be enforceable by parties other than defendant, the Federal Trade Commission, and/or the United States of America. 38. This Consent Decree resolves any and all controversies between the parties to this action in existence as of the date of entry of this Consent Decree that relate to Section 609(c)(1)(B) of the FCRA, 15 U.S.C. § 1681g(c)(1)(B). Plaintiff hereby releases defendant from any and all liability for any violations of Section 609(c)(1)(B) of the FCRA as of the date this Consent Decree is entered. 39. If, after the entry of this Consent Decree, the parties should have any dispute arising out of or relating to this Consent Decree or the parties' respective rights and duties hereunder, the Court will entertain no motion for enforcement of any provision of this Consent Decree unless counsel for both parties shall have previously conferred concerning, and in good faith tried to resolve, all of the disputed issues. 40. Except for the payment specifically described in paragraph 14 above and any penalty, fine, redress or remedy relating to violations of this Consent Decree, nothing in this Consent Decree shall be interpreted to compel or call for the payment of any monies by either party to the other, and each party shall bear its own expenses, costs, fees, attorneys' fees and disbursements of any sort associated with the investigation, prosecution, defense, negotiation, settlement and any other aspect of this settlement. 41. This Court shall retain jurisdiction of this matter for the purposes of enabling any of the parties to this Consent Decree to apply to the Court at any time for such further order or directive as may be necessary or appropriate for the interpretation or modification of this Consent Decree, for the enforcement of compliance therewith, or for the punishment of violations thereof. JUDGMENT IS THEREFORE ENTERED in favor of plaintiff and against defendant, pursuant to all the terms and conditions recited above. Dated this day of , 19 . UNITED STATES DISTRICT JUDGE The parties, by their respective counsel, hereby consent to the terms and conditions of the Consent Decree as set forth above and consent to the entry thereof. Defendant waives any rights that may arise under the Equal Access to Justice Act, 28 U.S.C. §2412, amended by, Pub. L. 104-121, 110 Stat. 847, 863-864 (1996). FOR THE UNITED STATES OF AMERICA DAVID W. OGDEN SCOTT R. LASSAR By:__________________________________ EUGENE M. THIROLF By:__________________________________ FOR THE FEDERAL TRADE COMMISSION: __________________________________ ___________________________________ _____________________________________ FOR THE DEFENDANT: TRANS UNION LLC By:__________________________________ Title:________________________________ James K. Gardner, Esq. Neal, Gerber & Eisenberg Two North LaSalle Street, Suite 2200 Chicago, IL 60602 UNITED STATES DISTRICT COURT UNITED STATES OF AMERICA, Plaintiff, v. TRANS UNION LLC Defendant. CIVIL ACTION NO. APPENDIX A TO CONSENT DECREE 1. Terms and phrases used in this Appendix are to be defined in accordance with paragraphs 3 through 13 of the Consent Decree. 2. Information submitted pursuant to paragraphs 3 and 4 below shall, for a period of three (3) years from the date of submission to the Federal Trade Commission, be treated as commercial or financial information obtained from a person and privileged or confidential under Federal Trade Commission Rule 4.10(a)(2), 16 C.F.R. § 4.10(a)(2). AUDIT REPORT 3. The audit report required in paragraph 28 of the Consent Decree shall provide the following information relating to all telephone numbers printed on consumer disclosures in accordance with Section 609(c)(1)(B) of the FCRA, 15 U.S.C. § 1681g(c)(1)(B), within sixty (60) calendar days prior to the commencement of and during each audit interval:
4. If the levels of service required by paragraph 18 of the Consent Decree were not met during twelve (12) or more of the thirteen (13) measurement periods in the audit interval, defendant's audit report shall also include:
UNITED STATES DISTRICT COURT UNITED STATES OF AMERICA, Plaintiff, v. TRANS UNION LLC, Defendant. CIVIL ACTION NO. APPENDIX B TO CONSENT DECREE Certification by responsible officer The certification by a responsible officer of defendant required by paragraph 28 of the Consent Decree shall take the following form: I declare under penalty of perjury that the compliance audit required by paragraph 28 of the Consent Decree for the period of {date} to {date} was conducted in good faith and in accordance with the Consent Decree, and that the foregoing audit report is true, complete, and accurate. The certification shall be signed and dated by a responsible officer of defendant. UNITED STATES DISTRICT COURT UNITED STATES OF AMERICA, Plaintiff, v. TRANS UNION LLC, Defendant. CIVIL ACTION NO. APPENDIX C TO CONSENT DECREE AUDIT INTERVALS
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