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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

ROSE COULTER-OWENS,

Plaintiff,

Case No. 2:14-cv-12688

Honorable Robert H. Cleland

LR 9.1(b) Claim of

Unconstitutionality

of Michigan State Statute

v.

RODALE, INC.,

Defendant.

DEFENDANT RODALE, INC.’S ANSWER AND ADDITIONAL

DEFENSES TO PLAINTIFF’S CLASS ACTION COMPLAINT

Defendant Rodale Inc. (“Rodale”) hereby answers Plaintiff’s Class Action

Complaint as follows:

NATURE OF THE CASE

1. Rodale publishes some of the most widely circulated magazines in the

United States, including Men’s Health, Women’s Health, Runner’s World, and

Prevention.

ANSWER: Rodale admits that it publishes magazines, including the

magazines set forth in Paragraph 1 and denies the remaining allegations contained

in Paragraph 1.

2. To supplement its sales and advertising revenues, Rodale also sells its

subscribers’ personal information—including their full names, titles of magazines

subscribed to, and home addresses (collectively “Personal Reading Information”),

as well as myriad other personal, lifestyle, and demographic information such as

gender, age, ethnicity, income, net worth, religion, parental status, charitable

donations, and even health conditions—to data miners and other third parties.

ANSWER: Rodale denies the allegations contained in Paragraph 2.

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3. Rodale’s disclosure of such personal, demographic, and lifestyle

information is problematic because it allows for highly specific targeting of groups

of individuals. For example, anyone could buy from Rodale a customer list with

the names and addresses of all Prevention subscribers who are single, over age 80,

own homes, suffer from arthritis, and donate to international aid groups.

ANSWER: Rodale denies the allegations contained in Paragraph 3.

4. While Rodale profits handsomely from such practices, it does so at the

expense of its subscribers’ privacy rights—Rodale does not obtain its customers’

consent prior to selling their Personal Reading Information.

ANSWER: Rodale denies the allegations contained in Paragraph 4.

5. By selling its customers’ Personal Reading Information without their

consent, Rodale not only disregards its customers’ privacy rights, it also violates

Michigan’s Video Rental Privacy Act, M.C.L. § 445.1712 (“VRPA”), which

prohibits companies from disclosing without permission any record or information

concerning a customer’s purchase of written materials, if the record identifies the

customer.

ANSWER: Rodale denies the allegations contained in Paragraph 5.

6. Accordingly, Plaintiff brings this Class Action Complaint against

Rodale for its intentional and unlawful disclosure of its customers’ Personal

Reading Information in violation of the VRPA, for breach of contract, and, in the

alternative to breach of contract, for unjust enrichment.

ANSWER: Rodale admits that Plaintiff purports to bring this Complaint

against Rodale as a putative class action, but denies that the claims alleged can

properly proceed as a class action and denies that Plaintiff or any putative class

member has any claim against Rodale, and denies the remaining allegations

contained in Paragraph 6.

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PARTIES

7. Plaintiff Rose Coulter-Owens is a natural person and citizen of the

State of Michigan.

ANSWER: Rodale lacks knowledge and information sufficient to form a

belief as to the truth of the allegations contained in Paragraph 7, and therefore

denies them on that basis.

8. Defendant Rodale, Inc. is a Pennsylvania corporation with its

principal place of business at 400 South Tenth Street, Emmaus, Pennsylvania

18098. Rodale conducts business throughout this District, the State of Michigan,

and the United States.

ANSWER: Rodale admits the allegations contained in Paragraph 8.

JURISDICTION AND VENUE

9. This Court has personal jurisdiction over Rodale because it is

registered to do, and regularly does, business in Michigan, including soliciting

business from, and entering into transactions with, Michigan consumers. Further,

the unlawful conduct alleged in the Complaint occurred in, was directed at, and/or

emanated from, Michigan.

ANSWER: Rodale admits that this Court has personal jurisdiction over

Rodale in this case, and that Rodale does business in Michigan, but denies the

remaining allegations contained in Paragraph 9.

10. This Court has subject matter jurisdiction over this action pursuant to

28 U.S.C. § 1332(d), because at least one Class member is a citizen of a different

state than Defendant, the amount in controversy exceeds $5,000,000.00, exclusive

of interest and costs, and none of the exceptions under that subsection apply to this

action.

ANSWER: Rodale admits that this Court has statutory subject matter

jurisdiction over this case pursuant to 28 U.S.C. § 1332(d), but denies that there is

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Article III subject matter jurisdiction because there is no case or controversy given

Plaintiff has not suffered any injury in fact and therefore lacks standing.

11. Venue is proper in this Court under 28 U.S.C. § 1391 because a

substantial part of the events and omissions giving rise to the claim occurred in this

District. 28 U.S.C. § 1391(b)(2). Venue is additionally proper because Plaintiff

Coulter-Owens resides within this District (in Lapeer County, Michigan), and

Defendant conducts significant business in this District, including soliciting

consumer business and entering into consumer transactions.

ANSWER: Rodale admits venue is proper in this Court, and that it has

subscribers in this District. Rodale states it lacks knowledge and information

sufficient to form a belief as to where Plaintiff resides. Rodale denies the

remaining allegations contained in Paragraph 11.

FACTUAL BACKGROUND

12. In 1988, members of the United States Senate warned that records of

consumers’ purchases and rentals of audiovisual and written materials offer “a

window into our loves, likes, and dislikes,” and that “the trail of information

generated by every transaction that is now recorded and stored in sophisticated

record-keeping systems is a new, more subtle and pervasive form of surveillance.”

S. Rep. No. 100-599 at 7–8 (1988) (statements of Sens. Simon and Leahy,

respectively).

ANSWER: Rodale refers to the cited Senate Report for its actual and

complete contents and denies any allegations or characterizations inconsistent

therewith. Rodale denies the remaining allegations contained in Paragraph 12.

13. Recognizing the need to further protect its citizens’ privacy rights,

Michigan’s legislature enacted the VRPA “to preserve personal privacy with

respect to the purchase, rental, or borrowing of certain materials,” by prohibiting

companies from disclosing certain types of sensitive consumer information. H.B.

No. 5331, 1988 Mich. Legis. Serv. 378 (West).

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ANSWER: Rodale refers to the cited document for its actual and complete

contents and denies any allegations or characterizations inconsistent therewith.

Rodale denies the remaining allegations contained in Paragraph 13.

14. Section 2 of the VRPA states:

[A] person, or an employee or agent of the person,

engaged in the business of selling at retail, renting, or

lending books or other written materials... shall not

disclose to any person, other than the customer, a record

or information concerning the purchase... of those

materials by a customer that indicates the identity of the

customer.

M.C.L. § 445.1712 (emphasis added).

ANSWER: Rodale admits that Paragraph 14 contains an excerpt from a

section of the VRPA, but denies that it is the complete text of the statute. Rodale

denies any remaining allegations contained in Paragraph 14.

15. Michigan’s protection of reading information reflects the “gut feeling

that people ought to be able to read books and watch films without the whole world

knowing,” and recognizes that “[b]ooks and films are the intellectual vitamins that

fuel the growth of individual thought. The whole process of intellectual growth is

one of privacy—of quiet, and reflection. This intimate process should be protected

from the disruptive intrusion of a roving eye.” S. Rep. No. 100–599, at 6

(Statement of Rep. McCandless).

ANSWER: Rodale refers to the cited document for its actual and complete

contents and denies any allegations or characterizations inconsistent therewith.

Rodale denies the remaining allegations contained in Paragraph 15.

16. As Senator Patrick Leahy recognized in proposing the Video and

Library Privacy Protection Act (later codified as the Video Privacy Protection Act,

18 U.S.C. § 2710), “[i]n practical terms our right to privacy protects the choice of

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movies that we watch with our family in our own homes. And it protects the

selection of books that we choose to read.” 134 Cong. Rec. S5399 (May 10,

1988).

ANSWER: Rodale refers to the cited Congressional Record for its actual

and complete contents and denies any allegations or characterizations inconsistent

therewith. Rodale denies the remaining allegations contained in Paragraph 16.

17. Senator Leahy also explained why choices in movies and reading

materials are so private: “These activities are at the core of any definition of

personhood. They reveal our likes and dislikes, our interests and our whims. They

say a great deal about our dreams and ambitions, our fears and our hopes. They

reflect our individuality, and they describe us as people.” Id.

ANSWER: Rodale refers to the cited Congressional Record for its actual

and complete contents and denies any allegations or characterizations inconsistent

therewith. Rodale denies the remaining allegations contained in Paragraph 17.

18. Michigan’s passage of the VRPA also established as a matter of law

“that a person’s choice in reading, music, and video entertainment is a private

matter, and not a fit subject for consideration by gossipy publications, employers,

clubs, or anyone else for that matter.” Privacy: Sales, Rentals of Videos, etc.,

House Legislative Analysis Section, H.B. No. 5331, Jan. 20, 1989 (attached hereto

as Exhibit A).

ANSWER: Rodale refers to the cited document for its actual and complete

contents and denies any allegations or characterizations inconsistent therewith.

Rodale denies the remaining allegations contained in Paragraph 18.

19. Despite the fact that thousands of Michigan residents subscribe to

Rodale publications, Rodale disregards its legal responsibility by systematically

violating the VRPA.

ANSWER: Rodale denies the allegations contained in Paragraph 19.

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20. In 2001, Federal Trade Commission (“FTC”) Commissioner Orson

Swindle remarked that “the digital revolution... has given an enormous capacity to

the acts of collecting and transmitting and flowing of information, unlike anything

we’ve ever seen in our life . . . [and] individuals are concerned about being defined

by the existing data on themselves.”1

ANSWER: Rodale refers to the cited document for its actual and complete

contents and denies any allegations or characterizations inconsistent therewith.

Rodale lacks knowledge and information sufficient to form a belief as to the truth

of the allegations contained in Paragraph 20 and therefore denies them on that

basis.

21. More than a decade later, Commissioner Swindle’s comments ring

truer than ever, as consumer data feeds an information marketplace that supports a

$26 billion dollar per year online advertising industry in the United States.

ANSWER: Rodale refers to the cited document for its actual and complete

contents and denies any allegations or characterizations inconsistent therewith.

Rodale lacks knowledge and information sufficient to form a belief as to the truth

of the allegations contained in Paragraph 21 and therefore denies them on that

basis.

22. The FTC has also recognized that consumer data possesses inherent

monetary value within the new information marketplace and publicly stated that:

1 Rodale does not include the numerous footnotes contained in Plaintiff’s

Complaint, but denies those footnotes to the extent they contain any allegations

that are inconsistent with the cited and referenced materials, and denies any

remaining allegations contained in those footnotes. Rodale also denies all

allegations contained in the subheadings throughout the Complaint, and does not

include them in its Answer.

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Most consumers cannot begin to comprehend the types

and amount of information collected by businesses, or

why their information may be commercially valuable.

Data is currency. The larger the data set, the greater

potential for analysis—and profit.

ANSWER: Rodale refers to the cited document for its actual and complete

contents and denies any allegations or characterizations inconsistent therewith.

Rodale lacks information or knowledge sufficient to form a belief as to the truth of

the allegations contained in Paragraph 22 and therefore denies them on that basis.

23. In fact, an entire industry exists where companies known as data

miners purchase, trade, and collect massive databases of information about

consumers. Data miners then profit by selling this “extraordinarily intrusive”

information in an open and largely unregulated market.

ANSWER: Rodale refers to the cited document for its actual and complete

contents and denies any allegations or characterizations inconsistent therewith.

Rodale lacks information or knowledge sufficient to form a belief as to the truth of

the allegations contained in Paragraph 23 and therefore denies them on that basis.

24. The scope of data miners’ knowledge about consumers is immense:

“If you are an American adult, the odds are that [they] know[] things like your age,

race, sex, weight, height, marital status, education level, politics, buying habits,

household health worries, vacation dreams—and on and on.”

ANSWER: Rodale refers to the cited document for its actual and complete

contents and denies any allegations or characterizations inconsistent therewith.

Rodale lacks information or knowledge sufficient to form a belief as to the truth of

the allegations contained in Paragraph 24 and therefore denies them on that basis.

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25. Further, “[a]s use of the Internet has grown, the data broker industry

has already evolved to take advantage of the increasingly specific pieces of

information about consumers that are now available.”

ANSWER: Rodale refers to the cited document for its actual and complete

contents and denies any allegations or characterizations inconsistent therewith.

Rodale lacks information or knowledge sufficient to form a belief as to the truth of

the allegations contained in Paragraph 25 and therefore denies them on that basis.

26. Recognizing the serious threat the data mining industry poses to

consumers’ privacy, on July 25, 2012, the co-Chairmen of the Congressional BiPartisan Privacy Caucus sent a letter to nine major data brokerage companies

seeking information on how those companies collect, store, and sell their massive

collections of consumer data.

ANSWER: Rodale refers to the cited document for its actual and complete

contents and denies any allegations or characterizations inconsistent therewith.

Rodale lacks information or knowledge sufficient to form a belief as to the truth of

the remaining allegations contained in Paragraph 26 and therefore denies them on

that basis.

27. In their letter, the co-Chairmen recognized that:

[t]he business of data brokerage, namely the collecting,

assembling, maintaining, and selling to third-parties of

consumers’ personal information, has grown into a

multiple billion dollar industry. By combining data from

numerous offline and online sources, data brokers have

developed hidden dossiers on every U.S. consumer. This

large[-]scale aggregation of the personal information of

hundreds of millions of American citizens raises a

number of serious privacy concerns.

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ANSWER: Rodale refers to the cited document for its actual and complete

contents and denies any allegations or characterizations inconsistent therewith.

Rodale lacks information or belief sufficient to form a belief as to the truth of the

allegations contained in Paragraph 27 and therefore denies them on that basis.

28. Data mining is especially troublesome when consumer information is

sold to direct-mail advertisers. In addition to causing waste and inconvenience,

direct-mail advertisers often use consumer information to lure unsuspecting

consumers into various scams, including fraudulent sweepstakes, charities, and

buying clubs. Thus, when companies like Rodale share information with data

miners and direct-mail advertisers, they contribute to the “[v]ast databases of

names and personal information” that are often “sold to thieves by large publicly

traded companies,” which “put[s] almost anyone within the reach of fraudulent

telemarketers” and other criminals.

ANSWER: Rodale denies the allegations in Paragraph 28 regarding its

actions and the effect of such actions. Rodale refers to the cited document for its

actual and complete contents and denies any allegations or characterizations

inconsistent therewith. Rodale lacks information or belief sufficient to form a

belief as to the truth of the remaining allegations contained in Paragraph 28 and

therefore denies them on that basis.

29. Information disclosures like Rodale’s are particularly dangerous to the

elderly. “Older Americans are perfect telemarketing customers, analysts say,

because they are often at home, rely on delivery services, and are lonely for the

companionship that telephone callers provide.” The FTC notes that “[t]he elderly

often are the deliberate targets of fraudulent telemarketers who take advantage of

the fact that many older people have cash reserves or other assets to spend on

seemingly attractive offers.”

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ANSWER: Rodale denies the allegations in the first sentence of Paragraph

29. Rodale refers to the cited document for its actual and complete contents and

denies any allegations or characterizations inconsistent therewith. Rodale lacks

knowledge or information sufficient to form a belief regarding the truth of the

remaining allegations contained in Paragraph 29 and therefore denies them on that

basis.

30. Indeed, an entire black market exists where the personal information

of vulnerable elderly Americans is exchanged. Thus, information disclosures like

Rodale’s are particularly troublesome because of their cascading nature: “Once

marked as receptive to [a specific] type of spam, a consumer is often bombarded

with similar fraudulent offers from a host of scam artists.”

ANSWER: Rodale denies the allegations in Paragraph 30 regarding its

actions and the effect of such actions. Rodale refers to the cited document for its

actual and complete contents and denies any allegations or characterizations

inconsistent therewith. Rodale lacks knowledge or information sufficient to form a

belief regarding the truth of the remaining allegations contained in Paragraph 30

and therefore denies them on that basis.

31. Rodale is not alone in jeopardizing its subscribers’ privacy and wellbeing in exchange for increased revenue: disclosing subscriber information to data

miners, direct marketers, and other third parties is a widespread practice in the

publishing industry.

ANSWER: Rodale denies the allegation in Paragraph 31.

32. Thus, as consumer data has become an ever-more valuable

commodity, the data mining industry has experienced rapid and massive growth.

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Unfortunately for consumers, this growth has come at the expense of their most

basic privacy rights.

ANSWER: Rodale denies the allegations contained in Paragraph 32.

33. As the data mining industry has grown, so too have consumer

concerns regarding the privacy of their personal information.

ANSWER: Rodale lacks knowledge or information sufficient to form a

belief as to the truth of the allegations contained in Paragraph 33 as to the alleged

nature of consumer concerns regarding the data mining industry. Rodale denies

any remaining allegations contained in Paragraph 33.

34. A recent survey conducted by Harris Interactive on behalf of

TRUSTe, Inc. showed that 89 percent of consumers polled avoid doing business

with companies who they believe do not protect their privacy online. As a result,

81 percent of smartphone users polled said that they avoid using smartphone apps

that they don’t believe protect their privacy online.

ANSWER: Rodale refers to the cited survey for its actual and complete

contents and denies any allegations or characterizations inconsistent therewith.

Rodale lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 34, and therefore denies them on that basis.

35. Thus, as consumer privacy concerns grow, consumers are increasingly

incorporating privacy concerns and values into their purchasing decisions and

companies viewed as having weaker privacy protections are forced to offer greater

value elsewhere (through better quality and/or lower prices) than their privacyprotective competitors.

ANSWER: Rodale lacks knowledge or information sufficient to form a

belief as to the truth of the allegations contained in Paragraph 35 as to the alleged

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nature of consumer concerns, values, or purchasing decisions. Rodale denies the

remaining allegations contained in Paragraph 35.

36. In fact, consumers’ personal information has become such a valuable

commodity that companies are beginning to offer individuals the opportunity to

sell their personal information themselves.

ANSWER: Rodale refers to the cited document for its actual and complete

contents and denies any allegations or characterizations inconsistent therewith.

Rodale lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 36, and therefore denies the allegations on

that basis.

37. These companies’ business models capitalize on a fundamental tenet

underlying the personal information marketplace: consumers recognize the

economic value of their private data. Research shows that consumers are willing

to pay a premium to purchase services from companies that adhere to more

stringent policies of protecting their personal data.

ANSWER: Rodale refers to the cited document for its actual and complete

contents and denies any allegations or characterizations inconsistent therewith.

Rodale lacks knowledge or information sufficient to form a belief as to the truth of

the allegations contained in Paragraph 37, and therefore denies the allegations on

that basis.

38. Thus, in today’s economy, individuals and businesses alike place a

real, quantifiable value on consumer data and corresponding privacy rights. As

such, where a business offers customers a service that includes statutorily

guaranteed privacy protections, yet fails to honor these guarantees, the customer

receives a service of less value than the service paid for.

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ANSWER: Rodale lacks knowledge or information sufficient to form a

belief as to the truth of the allegations contained in the first sentence of Paragraph

38. Rodale denies the allegations contained in Paragraph 38 to the extent it is

intended to apply to this case, and otherwise lacks knowledge or information

sufficient to form a belief as to the truth of those allegations. Rodale denies the

remaining allegations contained in Paragraph 38.

39. Rodale maintains a vast digital database comprised of its subscribers’

Personal Reading Information. Rodale discloses its subscribers’ Personal Reading

Information to data mining companies including Acxiom, Ethnic Technologies,

and others, who then supplement that information with additional sensitive

personal information about each Rodale subscriber, including gender, age,

ethnicity, income, net worth, religion, charitable donations, health conditions, and

even whether the subscriber has children living at home. (See, e.g., Exhibits B and

C.)

ANSWER: Rodale admits that it maintains a database containing certain

information about certain of its subscribers. Rodale admits it uses Acxiom and

others as agents to assist it with certain of its business operations, including

providing information to Rodale, but denies the characterization of these agents’

businesses and services, and denies that Rodale discloses any information in

violation of the VRPA. Rodale denies the remaining allegations contained in

Paragraph 39.

40. Rodale then sells its mailing lists—which include subscribers’

Personal Reading Information identifying which individuals purchased which

magazines, and can include the sensitive information obtained from data miners—

to data miners, other consumer-facing businesses, non-profit organizations seeking

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to raise awareness and solicit donations, and to political organizations soliciting

donations, votes, and volunteer efforts. (See Exhibits B – E.)

ANSWER: Rodale denies the allegations contained in Paragraph 40.

41. As a result of Rodale’s data compiling and sharing practices,

companies can purchase mailing lists from Rodale that identify Rodale subscribers

by their most intimate details: income, political affiliation, religious practice,

charitable donations, and even medical conditions. Rodale’s disclosure of such

sensitive and personal information puts consumers, especially the more vulnerable

members of society, at risk of serious harm from scammers. For example, Rodale

will sell—to anyone willing to pay for it—a list with the names and addresses of

all single, Prevention subscribers over age 80, who own homes, suffer from

arthritis, and donate to international aid groups.

ANSWER: Rodale denies the allegations contained in Paragraph 41.

42. Rodale discloses this information without subscriber consent, and its

subscribers remain unaware that their Personal Reading Information and other

sensitive personal information is being bought and sold on the open market.

ANSWER: Rodale denies the allegations contained in Paragraph 42.

43. Consumers can sign up for Rodale subscriptions through numerous

media outlets, including the Internet, telephone, or traditional mail. Regardless of

how the consumer subscribes, Rodale never requires the individual to read or agree

to any terms of service, privacy policy, or information-sharing policy.

Consequently, Rodale uniformly fails to obtain any form of consent from—or even

provide effective notice to—its subscribers before disclosing their Personal

Reading Information.

ANSWER: Rodale admits that there are various outlets through which an

individual may subscribe to a Rodale publication. Rodale denies the remaining

allegations contained in Paragraph 43.

44. As a result, Rodale disclosed and continues to disclose its customers’

Personal Reading Information—including their reading habits and preferences that

can “reveal intimate facts about our lives, from our political and religious beliefs to

our health concerns”—to anybody willing to pay for it, without consent and in

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direct violation of the VRPA and in breach of its contracts with Plaintiff and the

other Class members.

ANSWER: Rodale denies the allegations contained in Paragraph 44.

FACTS RELATING TO PLAINTIFF ROSE COULTER-OWENS

45. Plaintiff Rose Coulter-Owens is a citizen of the State of Michigan.

ANSWER: Rodale admits that it has records indicating that a person using

the name Rose Coulter-Owens with a Michigan address subscribed to a Rodale

magazine. However, Rodale lacks knowledge and information sufficient to form a

belief as to the truth of the allegations contained in Paragraph 45, and therefore

denies them on that basis.

46. Coulter-Owens currently subscribes to Prevention.

ANSWER: Rodale admits that its records list a person with that name as a

current subscriber to Prevention.

47. Prevention is a magazine published, owned, and operated by Rodale.

ANSWER: Rodale admits the allegations contained in Paragraph 47.

48. Coulter-Owens has never agreed to allow Rodale to sell or disclose

her Personal Reading Information to anyone.

ANSWER: Rodale denies the allegations contained in Paragraph 48.

49. Coulter-Owens did not receive notice before Rodale sold and

disclosed her Personal Reading Information.

ANSWER: Rodale denies the allegations contained in Paragraph 49.

50. However, beginning on the date that Coulter-Owens subscribed to

Prevention, and continuing to the present, Rodale has disclosed, and continues to

disclose, without consent or prior notice, Coulter-Owens’s Personal Reading

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Information (i.e., information that identifies Coulter-Owens as a Prevention

subscriber) to data mining companies including Acxiom, Ethnic Technologies, and

others, who then supplement that information with data from their own files.

ANSWER: Rodale admits that it uses Acxiom and others as agents to assist

it with certain of its business operations, such as providing information to Rodale

about its subscribers, including Rose Coulter-Owens. Rodale denies the

characterizations of its practices and those of its agents, and denies the remaining

allegations in Paragraph 50.

51. Furthermore, during that same time period, Rodale has sold—and

continues to sell and offer for sale—mailing lists containing Coulter-Owens’s

Personal Reading Information to third parties including direct-mail advertisers as

well as organizations soliciting monetary contributions, volunteer work, and votes,

without first obtaining Coulter-Owens’s written consent or even giving her prior

notice of the sales.

ANSWER: Rodale denies the allegations contained in Paragraph 51.

52. Because Rodale sold and disclosed her Personal Reading Information,

she now receives a deluge of junk mail and telephone solicitations. These

unwanted offers waste her time, money, and resources, and cause her emotional

distress, including irritation, annoyance, and anxiety and fear that her personal

information will fall into the hands of thieves and scammers. This increase in

harassing junk mail and phone calls received by Coulter-Owens is attributable, in

part, to Rodale’s sale of her Personal Reading Information.

ANSWER: Rodale denies the allegations contained in Paragraph 52.

53. Additionally, because Coulter-Owens is entitled by law to privacy in

her Personal Reading Information, and because she paid money for her Prevention

subscription, Rodale’s sale of her Personal Reading Information deprived her of

the full set of benefits to which she was entitled as part of her Prevention

subscription, thereby causing her economic harm.

ANSWER: Rodale denies the allegations contained in Paragraph 53.

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54. Accordingly, what Coulter-Owens received (a subscription without

privacy protections) was less valuable than what she paid for (a subscription with

accompanying privacy protections), and she would not have been willing to pay as

much, if at all, for her Prevention subscription had she known that Rodale would

disclose her Personal Reading Information.

ANSWER: Rodale denies the allegations contained in Paragraph 54.

CLASS ALLEGATIONS

55. Class Definition: Plaintiff brings this action pursuant to Fed. R. Civ.

P. 23(a), (b)(2), and (b)(3) on behalf of herself and a proposed Class, defined as

follows:

All Michigan residents who had their Personal Reading

Information disclosed to third parties by Rodale without

consent.

Excluded from the Class are (1) Defendant, Defendant’s agents, subsidiaries,

parents, successors, predecessors, and any entity in which the Defendant or their

parents have a controlling interest and their current and former employees, officers,

and directors, (2) the Judge or Magistrate Judge to whom this case is assigned and

the Judge’s or Magistrate Judge’s immediate family, (3) persons who execute and

file a timely request for exclusion, (4) all persons who have previously had claims

similar to those alleged herein finally adjudicated or who have released their

claims against Defendant, and (5) the legal representatives, successors, or assigns

of any such excluded person.

ANSWER: Rodale admits that Plaintiff purports to bring this action as a

class action on behalf of the alleged putative class, but Rodale denies that a class is

properly certifiable in this case. Rodale denies the remaining allegations contained

in Paragraph 55.

56. Numerosity: The exact number of Class members is unknown to

Plaintiff at this time, but it is clear that individual joinder of each class member is

impracticable. Defendant has deceived, and profited from selling the Personal

Reading Information of, thousands of consumers who fall into the definition set

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forth above. Ultimately, members of the Class will be easily identified through

Defendant’s records.

ANSWER: Rodale lacks knowledge or information sufficient to form a

belief about the truth of the allegations contained in Paragraph 56 relating to the

knowledge of Plaintiff and therefore denies those allegations. Rodale denies the

remaining allegations contained in Paragraph 56.

57. Commonality and Predominance: Common questions of law and

fact exist as to all members of the Class, and they predominate over any questions

affecting only individual members. Those questions with respect to the Class

include, but are not limited to:

(a) Whether Rodale is “engaged in the business of selling at retail”

books or other written materials (i.e., magazines);

(b) Whether Rodale obtained consent from Plaintiff and the Class

before disclosing their Personal Reading Information to third

parties;

(c) Whether Rodale’s disclosure of Plaintiff’s and the Class’s

Personal Reading Information violated the VRPA;

(d) Whether Rodale’s disclosure of Plaintiff’s and the Class’s

Personal Reading Information constitutes a breach of contract;

and

(e) Whether Rodale’s sale and disclosure of Plaintiff’s and the

Class’s Personal Reading Information constitutes unjust

enrichment.

ANSWER: Rodale denies the allegations in Paragraph 57.

58. Typicality: Plaintiff’s claims are typical of the claims of the other

Class members. Plaintiff and the Class sustained damages as a result of

Defendant’s uniform wrongful conduct based upon Defendant’s disclosure of

Plaintiff’s and the Class’s Personal Reading Information.

ANSWER: Rodale denies the allegations in Paragraph 58.

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59. Adequate Representation: Plaintiff will fairly and adequately

represent and protect the interests of the Class, and has retained counsel competent

and experienced in complex litigation and class actions. Plaintiff has no interests

antagonistic to those of the Class, and Defendant has no defenses unique to

Plaintiff. Plaintiff and her counsel are committed to vigorously prosecuting this

action on behalf of the Class members, and have the financial resources to do so.

Neither Plaintiff nor her counsel has any interest adverse to those of the other Class

members.

ANSWER: Rodale denies the allegations in Paragraph 59.

60. Policies Generally Applicable to the Class: This class action is

appropriate for certification because Defendant has acted or refused to act on

grounds generally applicable to the Class as a whole, thereby requiring the Court’s

imposition of uniform relief to ensure compatible standards of conduct toward the

Class members and making final injunctive relief appropriate with respect to the

Class as a whole. Defendant’s practices challenged herein apply to and affect the

Class members uniformly, and Plaintiff’s challenge to those practices hinges on

Defendant’s conduct with respect to the Class as a whole, not on facts or law

applicable only to Plaintiff.

ANSWER: Rodale denies the allegations in Paragraph 60.

61. Superiority: Class proceedings are superior to all other available

methods for the fair and efficient adjudication of this controversy, as joinder of all

Class members is impracticable. The damages suffered by the individual Class

members will likely be small relative to the burden and expense of individual

prosecution of the complex litigation necessitated by Defendant’s actions. Thus, it

would be virtually impossible for the Class members to obtain effective relief from

Defendant’s misconduct on an individual basis. Even if Class members could

sustain individual litigation, it would not be preferable to a class action, because

individual litigation would increase the delay and expense to all parties due to the

complex legal and factual controversies presented in this Complaint. By contrast,

a class action presents far fewer management difficulties and provides the benefits

of a single adjudication, economy of scale, and comprehensive supervision by a

single court. Economies of time, effort, and expense will be fostered and

uniformity of decisions will be ensured.

ANSWER: Rodale denies the allegations in Paragraph 61.

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62. Plaintiff reserves the right to revise the definition of the Class as

necessary based upon information learned in discovery.

ANSWER: Rodale admits that Plaintiff seeks to reserve the right to revise

the definition of the Class, but denies that Plaintiff necessarily has that right and

Rodale reserves the right to object to any such attempt to amend. Rodale denies

any remaining allegations contained in Paragraph 62.

FIRST CAUSE OF ACTION

Violation of the Video Rental Privacy Act

(M.C.L. § 445.1712)

(On Behalf of Plaintiff and the Class)

63. Plaintiff incorporates the foregoing allegations as if fully set forth

herein.

ANSWER: Rodale incorporates its responses to Paragraphs 1-62 as if fully

set forth herein.

64. Rodale sells magazine subscriptions, print and digital copies of

individual magazine issues, as well as books and videos, directly to consumers.

Therefore, Rodale is engaged in the business of selling books or other written

materials, and videos, at retail. See M.C.L. § 445.1712.

ANSWER: Rodale admits that it sells magazine subscriptions, print and

digital copies of individual magazine issues, books, and videos. The remainder of

the allegations contained in Paragraph 64 state legal conclusions to which no

response is required. To the extent that any response is required, Rodale denies

these allegations. Rodale refers to the VRPA for its complete contents and denies

any allegations or characterizations contained in Paragraph 64 that are inconsistent

therewith, and denies the remaining allegations contained in Paragraph 64.

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65. By subscribing to Prevention, Plaintiff purchased written materials

directly from Rodale. See M.C.L. § 445.1712.

ANSWER: Rodale admits that Coulter-Owens subscribed to Prevention.

The remaining allegations contained in Paragraph 65 state legal conclusions to

which no response is required. To the extent that any response is required, Rodale

denies these allegations. Rodale denies any remaining allegations in Paragraph 65.

66. Because Plaintiff purchased written materials directly from Rodale,

she is a “customer” within the meaning of the VRPA. See M.C.L. § 445.1711(a).

ANSWER: The allegations contained in Paragraph 66 state legal

conclusions to which no response is required. To the extent that any response is

required, Rodale denies these allegations.

67. At all times relevant, and beginning on the dates Plaintiff initiated her

Prevention subscription, Rodale disclosed Plaintiff’s Personal Reading

Information, which identified her as a Prevention subscriber, in at least two ways.

ANSWER: Rodale denies the allegations contained in Paragraph 67.

68. First, Rodale disclosed mailing lists containing Plaintiff’s Personal

Reading Information to data mining companies such as Acxiom, Ethnic

Technologies, and others, who then supplemented the mailing lists with additional

sensitive information from their own databases, before sending the mailing lists

back to Rodale.

ANSWER: Rodale denies the allegations contained in Paragraph 68.

69. Second, Rodale sold its mailing lists containing Plaintiff’s Personal

Reading Information—enhanced with additional information from data miners—to

third parties, including other consumer-facing companies, direct-mail advertisers,

and organizations soliciting monetary contributions, volunteer work, and votes.

ANSWER: Rodale denies the allegations contained in Paragraph 69.

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70. Because the mailing lists included the additional information from the

data miners, the lists were more valuable, and Rodale was able to increase its

profits gained from the mailing list sales.

ANSWER: Rodale denies the allegations contained in Paragraph 70.

71. By selling or otherwise disclosing its subscriber lists, Rodale

disclosed to persons other than Plaintiff records or information concerning her

purchase of written materials from Rodale. See M.C.L. § 445.1712.

ANSWER: Rodale denies the allegations contained in Paragraph 71.

72. The information Rodale disclosed indicates Plaintiff’s name and

address, as well as the fact that she subscribed to Prevention. Accordingly, the

records or information disclosed by Rodale indicate Plaintiff’s identity. See

M.C.L. § 445.1712.

ANSWER: Rodale denies the allegations contained in Paragraph 72.

73. Plaintiff never consented to Rodale disclosing their Personal Reading

Information to anyone.

ANSWER: Rodale denies the allegations contained in Paragraph 73.

74. Worse yet, Plaintiff did not receive notice before Rodale’s disclosed

their Personal Reading Information to third parties.

ANSWER: Rodale denies the allegations contained in Paragraph 74.

75. On information and belief, Rodale’s disclosures of Plaintiff’s Personal

Reading Information were not made pursuant to a court order, search warrant, or

grand jury subpoena.

ANSWER: Rodale admits that the allegations in this Complaint do not

pertain to disclosures pursuant to a court order, search warrant, or grand jury

subpoena. Rodale denies that it has disclosed information in violation of the

VRPA, and denies any remaining allegations contained in Paragraph 75.

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76. Rodale’s disclosures of Plaintiff’s Personal Reading Information were

not made to collect payment for their subscriptions.

ANSWER: Rodale admits that the allegations in this Complaint do not

pertain to disclosures made to collect payment for subscriptions. Rodale denies

that it has disclosed information in violation of the VRPA, and denies any

remaining allegations contained in Paragraph 76.

77. Rodale’s disclosures of Plaintiff’s Personal Reading Information were

made to data miners, direct-mail advertisers, and organizations soliciting monetary

contributions, volunteer work, and votes—all in order to increase Rodale’s

revenue. Accordingly, Rodale’s disclosures were not made for the exclusive

purpose of marketing goods and services directly to Plaintiff.

ANSWER: Rodale denies the allegations contained in Paragraph 77.

78. By disclosing Plaintiff’s Personal Reading Information, Rodale

violated Plaintiff’s common law right to privacy.

ANSWER: Rodale denies the allegations contained in Paragraph 78.

79. By disclosing Plaintiff’s Personal Reading Information, Rodale

violated Plaintiff’s statutorily-protected right to privacy in their reading habits. See

M.C.L. § 445.1712.

ANSWER: Rodale denies the allegations contained in Paragraph 79.

80. Additionally, because Plaintiff and the Class paid for their Rodale

subscriptions, and Rodale was obligated to comply with the VRPA, Rodale’s

unlawful disclosure of Plaintiff’s and the other Class members’ Personal Reading

Information deprived Plaintiff and the Class members of the full value of their

paid-for subscriptions. Because Plaintiff and the other Class members ascribe

monetary value to the privacy of their Personal Reading Information, Rodale’s

unlawful sale and disclosure of their Personal Reading Information caused her to

receive less value than she paid for, thereby causing her economic harm.

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ANSWER: Rodale lacks knowledge or information sufficient to form a

belief about the truth of the allegations regarding the subjective and individualized

view of Plaintiff or the putative class members. Rodale denies the remaining

allegations contained in Paragraph 80.

81. Likewise, because Plaintiff and the other Class members ascribe

monetary value to the privacy of their Personal Reading Information, a magazine

subscription that keeps their Personal Reading Information private is more

valuable than one that does not.

ANSWER: Rodale lacks knowledge or information sufficient to form a

belief about the truth of the allegations regarding what monetary value, if any,

Plaintiff or the putative class members ascribe to their privacy, or their views as to

the value of any particular magazine subscription. Rodale denies the remaining

allegations contained in Paragraph 81.

82. Accordingly, had Plaintiff been adequately informed of Rodale’s

disclosure practices, she would not have been willing to purchase her Prevention

subscription at the price charged, if at all. Thus, Rodale’s unlawful disclosures

caused Plaintiff economic harm.

ANSWER: Rodale lacks knowledge and information sufficient to form a

belief as to the truth of the allegations contained in the first sentence of Paragraph

82. Rodale denies it disclosed Plaintiff’s information in violation of the VRPA,

and denies the remaining allegations contained in Paragraph 82.

83. Rodale’s disclosure of Plaintiff’s Personal Reading Information to

third parties has also caused an influx of third party print advertisements and

marketing calls to her cellular phone, causing emotional distress in the form of

irritation, aggravation, anxiety, and fear that her information will be obtained and

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misused by thieves and scammers, as well as damages in the form of decreased

available cellular phone minutes.

ANSWER: Rodale denies the allegations contained in Paragraph 83.

84. As a result of Rodale’s unlawful and continued disclosure of their

Personal Reading Information, Plaintiff and the other Class members have suffered

privacy and economic injuries. On behalf of herself and the Class, Plaintiff seeks:

(1) an injunction requiring Defendant Rodale to obtain consent from Michigan

subscribers prior to the disclosure of their Personal Reading Information as

required by the VRPA; (2) actual damages, including disgorgement, or $5,000.00,

whichever is greater, per Class member pursuant to M.C.L. § 445.1715(a); and (3)

costs and reasonable attorneys’ fees pursuant to M.C.L. § 445.1715(b).

ANSWER: Rodale admits that Plaintiff seeks the relief enumerated in

Paragraph 84, but denies that Plaintiff or any putative class member is entitled to

any of the relief requested and denies all remaining allegations contained in

Paragraph 84.

SECOND CAUSE OF ACTION

Breach of Contract

(On Behalf of Plaintiff and the Class)

85. Plaintiff incorporates the foregoing allegations as if fully set forth

herein.

ANSWER: Rodale incorporates its responses to Paragraphs 1-84 as if fully

set forth herein.

86. Rodale offered to sell magazine subscriptions to Coulter-Owens and

the other Class members for specific prices.

ANSWER: No response is required to the allegations in Paragraph 86

because the Court dismissed the contract claim in this action, and they are

therefore denied on that basis.

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87. Coulter-Owens and the other Class members accepted Rodale’s offers

by agreeing to pay the offered prices as consideration for purchasing the magazine

subscriptions.

ANSWER: No response is required to the allegations in Paragraph 87

because the Court dismissed the contract claim in this action, and they are

therefore denied on that basis.

88. Accordingly, Rodale, on the one hand, and Coulter-Owens and the

other Class members on the other, entered into binding contracts for magazine

subscriptions.

ANSWER: No response is required to the allegations in Paragraph 88

because the Court dismissed the contract claim in this action, and they are

therefore denied on that basis.

89. Because the laws existing at the time and place of the making of a

contract are incorporated into it, the contracts between Rodale and Coulter-Owens

and the other Class members included obligations for the parties to abide by all

applicable laws, including the VRPA.

ANSWER: No response is required to the allegations in Paragraph 89

because the Court dismissed the contract claim in this action, and they are

therefore denied on that basis.

90. Coulter-Owens and the other Class members performed their

obligations under the contracts by paying the consideration owed to Rodale for the

purchase of their magazine subscriptions, and by complying with all applicable

laws.

ANSWER: No response is required to the allegations in Paragraph 90

because the Court dismissed the contract claim in this action, and they are

therefore denied on that basis.

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91. The ability to control disclosure of sensitive personal information

(such as Personal Reading Information) is material to any consumer transaction

because it is likely to affect a consumer’s decision to, or conduct regarding,

purchase of a product or service.

ANSWER: No response is required to the allegations in Paragraph 91

because the Court dismissed the contract claim in this action, and they are

therefore denied on that basis.

92. Rodale’s failure to perform its contractual obligations imposed by the

VRPA—i.e., maintaining confidentiality of subscribers’ Personal Reading

Information—constitutes a material breach by Rodale of its contracts with CoulterOwens and the other Class members.

ANSWER: No response is required to the allegations in Paragraph 92

because the Court dismissed the contract claim in this action, and they are

therefore denied on that basis.

93. Plaintiff and the other Class members have suffered actual damages as

a result of Rodale’s breach in the form of the value Coulter-Owens and the other

Class members paid for and ascribed to the confidentiality of their Personal

Reading Information. This amount is tangible and will be calculated at trial.

ANSWER: No response is required to the allegations in Paragraph 93

because the Court dismissed the contract claim in this action, and they are

therefore denied on that basis.

94. Further, a portion of the purchase price of each Rodale subscription

sold to Plaintiff and the other Class members was intended to ensure the

confidentiality of Plaintiff’s and the other Class members’ Personal Reading

Information, as required by the VRPA. Because Plaintiff and the other Class

members were denied services that they paid for and were entitled to receive—i.e.,

confidentiality of their Personal Reading Information—they incurred actual

monetary damages.

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ANSWER: No response is required to the allegations in Paragraph 94

because the Court dismissed the contract claim in this action, and they are

therefore denied on that basis.

95. Additionally, because Rodale profited from its breach, Plaintiff and

the other Class members are entitled to disgorgement of all profits obtained by

Rodale from its unlawful disclosure of its subscribers’ Personal Reading

Information.

ANSWER: No response is required to the allegations in Paragraph 95

because the Court dismissed the contract claim in this action, and they are

therefore denied on that basis.

96. Accordingly, Plaintiff and the other Class members seek an order

declaring that Rodale’s conduct constitutes breach of contract, and awarding

Plaintiff and the Class disgorgement of Rodale’s unlawfully obtained profits, and

damages in an amount to be calculated at trial.

ANSWER: No response is required to the allegations in Paragraph 96

because the Court dismissed the contract claim in this action, and they are

therefore denied on that basis.

THIRD CAUSE OF ACTION

Unjust Enrichment

(In the Alternative to Breach of Contract)

(On Behalf of Plaintiff and the Class)

97. Plaintiff incorporates the allegations contained in Paragraphs 1

through 84 as if fully set forth herein.

ANSWER: Rodale incorporates its response to Paragraphs 1-96 as if fully

set forth herein.

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98. Plaintiff’s claim for unjust enrichment is brought in the alternative to

her claim for breach of contract.

ANSWER: Rodale admits that Plaintiff purports to bring this claim in the

alternative, but denies that she has properly asserted such a claim and states the

claim is without merit. Rodale denies any remaining allegations contained in

Paragraph 98.

99. Plaintiff and the Class members conferred benefits on Rodale by

providing Rodale with their Personal Reading Information and paying Rodale for

their magazine subscriptions. Rodale received and retained the information and

money belonging to Plaintiff and the Class when Plaintiff and the Class subscribed

to Rodale publications.

ANSWER: Rodale denies the allegations contained in Paragraph 99.

100. Because Rodale received and processed Plaintiff’s and the Class’s

subscription payments and Personal Reading Information, and because Rodale has

employees handling customer accounts and billing as well as customer data,

Rodale appreciates or has knowledge of such benefits.

ANSWER: Rodale denies the allegations contained in Paragraph 100.

101. Under the VRPA, Plaintiff and the Class members were entitled to

confidentiality in their Personal Reading Information as part of their subscriptions.

ANSWER: Rodale denies the allegations contained in Paragraph 101.

102. Under principles of equity and good conscience, because Rodale

failed to comply with the VRPA, Rodale should not be allowed to retain the full

amount of money Plaintiff and the Class paid for their subscriptions or the money

it received by selling Plaintiff’s and the Class’s Personal Reading Information.

ANSWER: Rodale denies the allegations contained in Paragraph 102.

103. Plaintiff and the other Class members have suffered actual damages as

a result of Rodale’s unlawful conduct in the form of the value Plaintiff and the

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31

other Class members paid for and ascribed to the confidentiality of their Personal

Reading Information. This amount is tangible and will be calculated at trial.

ANSWER: Rodale denies the allegations contained in Paragraph 103.

104. Additionally, Plaintiff and the Class members have suffered actual

damages inasmuch as Rodale’s failure to inform them that it would disclose their

Personal Reading Information caused them to purchase magazine subscriptions

when they otherwise would not have.

ANSWER: Rodale denies the allegations contained in Paragraph 104.

105. Further, a portion of the purchase price of each Rodale magazine

subscription sold to Plaintiff and the other Class members was intended to ensure

the confidentiality of Plaintiff’s and the other Class members’ Personal Reading

Information, as required by the VRPA. Because Plaintiff and the other Class

members were denied services that they paid for and were entitled to receive—i.e.,

confidentiality of their Personal Reading Information—and because Plaintiff and

the Class would have commanded a discount to voluntarily forego those benefits,

they incurred actual monetary damages.

ANSWER: Rodale denies the allegations contained in Paragraph 105.

106. To prevent inequity, Rodale should return to Plaintiff and the Class

the value they ascribe to confidentiality of their Personal Reading Information and

all money derived from Rodale’s sale and disclosure of Plaintiff’s and the Class’s

Personal Reading Information.

ANSWER: Rodale denies the allegations contained in Paragraph 106.

107. Accordingly, Plaintiff and the Class members seek an order declaring

that Rodale’s conduct constitutes unjust enrichment, and awarding Plaintiff and the

Class restitution in an amount to be calculated at trial equal to the amount of

money obtained by Rodale through its sale and disclosure of Plaintiff’s and the

Class’s Personal Reading Information.

ANSWER: Rodale admits that Plaintiff purports to seek the alleged order,

but denies that Plaintiff or the putative Class is entitled to any such order, and

denies any remaining allegations contained in Paragraph 107. Rodale denies that

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32

Plaintiff or the putative class is entitled to any relief from Rodale, including the

relief contained in the Prayer for Relief, and denies any remaining allegations

contained in the Prayer for Relief.

ADDITIONAL DEFENSES

Rodale asserts the following additional defenses to Plaintiff’s Complaint:

FIRST ADDITIONAL DEFENSE

Plaintiff’s information was not disclosed in violation of the VRPA.

SECOND ADDITIONAL DEFENSE

Any alleged disclosure by Rodale of the magazine subscription information

of its customers was to an “agent” and therefore permissible under the VRPA.

THIRD ADDITIONAL DEFENSE

The VRPA is inapplicable to the disclosures alleged because Rodale’s

magazine subscriptions are not sold “at retail,” nor did Plaintiff or certain members

of the putative class purchase their subscriptions “at retail,” pursuant to MCL

445.1712.

FOURTH ADDITIONAL DEFENSE

The VRPA does not apply to Rodale’s magazine business, as a magazine

subscription is not “written material” within the meaning of the VRPA.

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33

FIFTH ADDITIONAL DEFENSE

Any alleged disclosure by Rodale of magazine subscription information was

for the exclusive purpose of marketing goods and services directly to the consumer

and therefore permissible under the VRPA.

SIXTH ADDITIONAL DEFENSE

Plaintiff and the putative class were informed by written notice that they

may remove his or her name at any time, pursuant to MCL § 445.1713(d).

SEVENTH ADDITIONAL DEFENSE

Both on its face and as sought to be applied by Plaintiff, the statutory

damages scheme set forth in the VRPA is unconstitutionally excessive, and barred

by the Fifth and/or Eighth Amendments to the United States Constitution and

Article I, Sections 16 and 17 of the Michigan Constitution, and violates substantive

and procedural due process.

EIGHTH ADDITIONAL DEFENSE

Both on its face and as sought to be applied by Plaintiff, the VRPA is

unconstitutional under the First Amendment to the United States Constitution and

Article I, Section 5 of the Michigan Constitution.

NINTH ADDITIONAL DEFENSE

Both on its face and as sought to be applied by Plaintiff, the VRPA violates

the Takings Clause of the United States Constitution.

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34

TENTH ADDITIONAL DEFENSE

Both on its face and as sought to be applied by Plaintiff, the VRPA is

unconstitutional under the United States Constitution and the Michigan

Constitution for numerous additional reasons, including but not limited to the fact

the VRPA is impermissibly vague and ambiguous.

ELEVENTH ADDITIONAL DEFENSE

Plaintiff and the putative class members have incurred no cognizable

damage and have not suffered any injury in fact and therefore lack standing, and

their claims also fail because they have not suffered any “harm” or “actual

damages.”

TWELFTH ADDITIONAL DEFENSE

Plaintiff and the putative class members have failed to mitigate any alleged

damages.

THIRTEENTH ADDITIONAL DEFENSE

Plaintiff’s and the putative class members’ claims are barred in whole or in

part by the doctrines of consent, waiver, estoppel, laches, unclean hands, and/or

other equitable doctrines.

FOURTEENTH ADDITIONAL DEFENSE

Plaintiff’s and the putative class members’ claims are barred, in whole or in

part, by the applicable statute of limitations and/or statute of repose.

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35

FIFTEENTH ADDITIONAL DEFENSE

Plaintiff’s and the putative class members’ claims for unjust enrichment fail

as a matter of law because each of them received the benefit of the bargain.

SIXTEENTH ADDITIONAL DEFENSE

The Complaint contains insufficient information to permit Rodale to raise all

appropriate defenses and, therefore, Rodale reserves its right to amend and/or

supplement this answer and these defenses and to assert additional defenses.

WHEREFORE, Rodale Inc. respectfully requests that this Court enter

judgment in its favor and against Plaintiff Rose Coulter-Owens on her Complaint,

award Rodale its costs, and enter such other relief this Court deems necessary and

proper.

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36

Dated: February 25, 2015

Respectfully submitted,

/s/ Natalie J. Spears

One of the Attorneys for Defendant

Rodale Inc.

Peter B. Kupelian (P31812)

Carol G. Schley (P51301)

CLARK HILL PLC

151 South Old Woodward Ave.

Suite 200

Birmingham, MI 48009

pkupelian@clarkhill.com

cschley@clarkhill.com

Natalie J. Spears

Anthony T. Eliseuson

Kristen C. Rodriguez

DENTONS US LLP

233 South Wacker Drive

Suite 7800

Chicago, IL 60606

(312) 876-8000

(312) 876-7934 (fax)

natalie.spears@dentons.com

anthony.eliseuson@dentons.com

kristen.rodriguez@dentons.com

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37

83825344\V-9

CERTIFICATE OF SERVICE

Natalie J. Spears, an attorney, hereby certify that on February 25, 2015, a

copy of the foregoing was served via the CM/ECF filing system, which send

notification to the attorneys of record.

/s/ Natalie J. Spears

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