1

THE UNITED STATES DISTRICT COURT 

DISTRICT OF UTAH 

FEDERAL TRADE COMMISSION and 

UTAH DIVISION OF CONSUMER 

PROTECTION, 

Plaintiffs, 

v.

NUDGE, LLC; RESPONSE MARKETING 

GROUP, LLC; BUYPD, LLC; BRANDON B.

LEWIS; RYAN C. POELMAN; PHILLIP W. 

SMITH; SHAWN L. FINNEGAN; and 

CLINT L. SANDERSON, 

Defendants. 

STIPULATED ORDER FOR 

PERMANENT INJUNCTION, 

MONETARY JUDGMENT, AND 

OTHER RELIEF AS TO DEFENDANTS 

NUDGE, LLC; RESPONSE 

MARKETING GROUP, LLC; BUYPD, 

LLC; BRANDON B. LEWIS; RYAN C. 

POELMAN; PHILLIP W. SMITH; 

SHAWN L. FINNEGAN; AND

CLINT R. SANDERSON

Case No. 2:19-cv-00867-DBB-DAO

District Judge David Barlow

Plaintiffs, the Federal Trade Commission (“Commission” or “FTC”) and the Utah 

Division of Consumer Protection (the “Division”) (collectively, “Plaintiffs”), filed their 

Complaint for Permanent Injunction and Other Equitable Relief, subsequently amended as the 

First Amended Complaint for Permanent Injunction and Other Equitable Relief, (as amended,

“Complaint”) for a permanent injunction, monetary relief, and other relief in this matter, 

pursuant to Sections 13(b) and 19 of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. 

§§ 53(b) and 57b, the Telemarketing and Consumer Fraud and Abuse Prevention Act 

(“Telemarketing Act”), 15 U.S.C. §§ 6101-6108, the Telemarketing Sales Rule, 16 C.F.R. Part 

310, the Utah Consumer Sales Practices Act (“UCSPA”), Utah Code § 13-11-1 et seq., the 

Business Opportunity Disclosure Act (“BODA”), Utah Code § 13-15-1 et seq., and the 

Telephone Fraud Prevention Act (“TFPA”), Utah Code § 13-26-1 et seq.

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36622 Page 1 of 47
2

The Plaintiffs and Defendants Nudge, LLC; Response Marketing Group, LLC; BuyPD, 

LLC; Brandon B. Lewis; Ryan C. Poelman; Phillip W. Smith; Shawn L. Finnegan; and Clint R. 

Sanderson (collectively, “Defendants”) stipulate to the entry of this Stipulated Order for 

Permanent Injunction, Monetary Judgment, and Other Relief as to the Defendants (“Order”) to 

resolve all matters in dispute in this action between them.

THEREFORE, IT IS ORDERED as follows:

FINDINGS

1. This Court has jurisdiction over this matter.

2. The Complaint charges that the Defendants participated in deceptive and unlawful 

acts or practices in violation of Section 5 of the FTC Act, 15 U.S.C. § 45, the Telemarketing 

Sales Rule (“TSR”), 16 C.F.R. Part 310, the UCSPA, Utah Code § 13-11-1 et seq., the BODA, 

Utah Code § 13-15-1 et seq., and the TFPA, Utah Code § 13-26-1 et seq., in the marketing and 

sale of real estate training services.

3. Defendants neither admit nor deny any of the allegations in the Complaint, except 

as specifically stated in this Order. Only for purposes of this action, the Defendants admit the 

facts necessary to establish jurisdiction.

4. Defendants waive any claim that they may have under the Equal Access to Justice 

Act, 28 U.S.C. § 2412, concerning the prosecution of this action through the date of this Order, 

and agree to bear their own costs and attorney fees.

5. Defendants and Plaintiffs waive all rights to appeal or otherwise challenge or 

contest the validity of this Order.

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36623 Page 2 of 47
3

DEFINITIONS

For the purpose of this Order, the following definitions apply:

A. Defendants means all of the Individual Defendants and the Corporate Defendants, 

individually, collectively, or in any combination.

1. “Corporate Defendants” means Nudge, LLC, Response Marketing Group, LLC

(also doing business as 3 Day Real Estate Training, Abundance Edu, LLC, Affluence 

Edu, LLC, American Money Tour, Cash Flow EDU, Clark EDU, LLC, Edge 2 Real 

Estate, Evtech Media North, Flip for Life, Flipping For Life, Income Events, Insider’s 

Financial Education, LLC, Leading Financial Education, LLC, Onwealth, Power Flip, 

Prosper Live, Property Education, LLC, Renovate To Rent, Simple Real Estate 

Training, Smart Flip, Snap Flip, US Education Advance, Vintage Flip, Visionary 

Events, Wealth Tribe, Women’s Empowerment, Yancey Events, Yancey, LLC, and 

Your Real Estate Today), and BuyPD, LLC, and their successors and assigns. 

2. “Individual Defendants” means Brandon B. Lewis, Ryan C. Poelman, Phillip W. 

Smith, Shawn L. Finnegan, and Clint R. Sanderson.

B. “Material Connection” means any relationship that might materially affect the weight or 

credibility of any representation or endorsement and that would not be reasonably 

expected by consumers.

C. “Telemarketing” means any plan, program, or campaign which is conducted to induce 

the purchase of goods or services by use of one or more telephones, and which involves a

telephone call, whether or not covered by the Telemarketing Sales Rule.

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36624 Page 3 of 47
4

ORDER

I. BAN ON WEALTH CREATION PRODUCTS AND SERVICES

IT IS ORDERED that the Defendants are permanently restrained and enjoined from 

advertising, marketing, promoting, or offering for sale, or assisting in the advertising, marketing, 

promoting, or offering for sale, of any wealth creation product or service, including any training 

or coaching related to: (a) real estate; (b) stocks or options; (c) other investments; or (d) online 

stores or work-at-home opportunities.

Provided, however, that nothing in Section I of this Order shall bar or prevent Defendants 

from charging consumers for a real estate or stock software product or service that the consumer 

purchased before November 7, 2019 and has previously requested to renew for up to twelve 

months from the date of the entry of this Order.

II. PROHIBITIONS REGARDING TELEMARKETING 

IT IS FURTHER ORDERED that the Defendants, Defendants’ officers, agents, 

employees, attorneys, and all other persons in active concert or participation with any of them, 

who receive actual notice of this Order, whether acting directly or indirectly, in connection with 

Telemarketing of any goods or services are permanently restrained and enjoined from:

A. misrepresenting any material aspect of the performance, efficacy, nature, or 

central characteristics of goods or services that are the subject of a sales offer;

B. making a false or misleading statement to induce any person to pay for goods or

services; and 

C. violating any provision of the TSR, 16 C.F.R. Part 310, a copy of which is 

attached as Attachment A, and the Telephone Fraud Prevention Act (“TFPA”), Utah Code, 

§ 13-26-1 et seq., a copy of which is attached as Attachment B.

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36625 Page 4 of 47
5

III. PROHIBITION AGAINST MISREPRESENTATIONS

IT IS FURTHER ORDERED that the Defendants, the Defendants’ officers, agents, 

employees, attorneys, and all other persons in active concert or participation with any of them, 

who receive actual notice of this Order, whether acting directly or indirectly, in connection with 

advertising, marketing, promoting, or offering for sale any good or service, are permanently 

restrained and enjoined from making or assisting others in making any misrepresentations, 

expressly or by implication:

A. That any training or coaching program is only available for a select group of 

consumers who have to qualify to join the program; 

B. Regarding the need or purpose for obtaining consumers’ financial information;

C. That consumers will recoup the cost of the Defendants’ products and services 

through the provision of any product or service that any Defendant offers;

D. That consumers will have unlimited access to mentors or advisors offered or 

promoted by Defendants;

E. That mentors or advisors offered or promoted by Defendants will provide 

specialized expert advice tailored to consumers’ specific needs;

F. That any product or service offered or sold by Defendants is unique or not offered 

elsewhere;

G. Regarding any Material Connection between the Defendants and any individual or 

entity offering or affiliated with a product or service;

H. That any consumer review or endorsement is truthful or is made by an actual user 

of such product or service or entity; 

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36626 Page 5 of 47
6

I. Through the use of any endorsement of a product, service, or entity; or

J. Regarding any other fact material to consumers concerning any good or service, 

such as: the total costs; any material restrictions, limitations, or conditions; or any material aspect 

of its performance, efficacy, nature, or central characteristics.

IV. MONETARY JUDGMENT

IT IS FURTHER ORDERED that: 

Judgment in the amount of Fifteen Million Dollars ($15,000,000) is entered in 

favor of the Commission against Nudge, LLC, Response Marketing Group, LLC, BuyPD, LLC,

Brandon B. Lewis, Ryan C. Poelman, Phillip W. Smith, Shawn L. Finnegan, and Clint R. 

Sanderson, jointly and severally, as monetary relief.

Judgment in the amount of Fifteen Million Dollars ($15,000,000) is entered in 

favor of the Division against Nudge, LLC, Response Marketing Group, LLC, BuyPD, LLC,

Brandon B. Lewis, Ryan C. Poelman, Phillip W. Smith, Shawn L. Finnegan, and Clint R. 

Sanderson, jointly and severally, as civil penalties.

The Defendants are ordered to pay to the Commission Fifteen Million Dollars 

($15,000,000), by electronic fund transfer in accordance with instructions previously provided by 

a representative of the Commission, as follows:

1. Five Million Dollars ($5,000,000) within 7 days of entry of this Order, 

which undersigned counsel shall hold in escrow as of the date the 

Defendants execute this Order for no purpose other than payment to the 

Commission;

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36627 Page 6 of 47
7

2. One Million Seven Hundred Fifty Thousand Dollars ($1,750,000) within 

120 days of entry of this Order;

3. One Million Seven Hundred Fifty Thousand Dollars ($1,750,000) within 

240 days of entry of this Order; and

4. Six Million Five Hundred Thousand Dollars ($6,500,000) within 540 days 

of entry of this Order.

The payments specified in Sections C.2-4 above (“Deferred Payments”) shall be 

secured by the collateral listed in Attachment C (“Collateral"), which is owned by Building One 

Lindon, LLC. Defendants represent that one or more of the Defendants has the right and 

authority to grant the Commission the security interest in the Collateral. The terms and 

conditions of the pledge agreement shall be subject to further documentation acceptable to the 

Commission, including sworn statements regarding the collateral. Defendants shall cooperate 

with and take all steps necessary to perfect and protect the Commission’s secured interest in the 

collateral, at the Defendants’ expense.

Time is of the essence for the Deferred Payments. In the event any such payment 

is not made by the due date, the entire outstanding balance of the Judgment shall be immediately 

due and payable to the Commission, and the Defendants consent to entry of an order in this case 

appointing an equity receiver to take possession of and liquidate any collateral securing the 

Deferred Payments.

Upon the payment of the entire amount to the Commission set forth in Subsection 

C above, the judgment in favor of the Division is suspended.

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36628 Page 7 of 47
8

V. ADDITIONAL MONETARY PROVISIONS

IT IS FURTHER ORDERED that: 

A. The Defendants relinquish dominion and all legal and equitable right, title, and 

interest in all assets transferred pursuant to this Order and may not seek the return of any assets.

B. The facts alleged in the Complaint will be taken as true, without further proof, in 

any subsequent civil litigation by or on behalf of the Plaintiffs, including in a proceeding to 

enforce the Plaintiffs’ rights to any payment or monetary judgment pursuant to this Order, such 

as a nondischargeability complaint in any bankruptcy case.

C. The facts alleged in the Complaint establish all elements necessary to sustain an 

action by the Plaintiffs pursuant to Section 523(a)(2)(A) of the Bankruptcy Code, 11 U.S.C. 

§ 523(a)(2)(A), and this Order will have collateral estoppel effect for such purposes.

D. The Defendants acknowledge that their Taxpayer Identification Numbers (Social 

Security Numbers or Employer Identification Numbers), which the Defendants must submit to 

the Plaintiffs, may be used for collecting and reporting on any delinquent amount arising out of 

this Order, in accordance with 31 U.S.C. § 7701.

E. All money received by the Commission pursuant to this Order may be deposited into a 

fund administered by the Commission or its designee to be used for consumer relief, such as 

redress and any attendant expenses for the administration of any redress fund. If a representative 

of the Commission, in consultation with the Division, decides that direct redress to consumers is 

wholly or partially impracticable or money remains after redress is completed, the Commission 

may apply any remaining money for such other relief (including consumer information remedies) 

as it determines to be reasonably related to Defendants’ practices alleged in the Complaint.

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36629 Page 8 of 47
9

VI. CUSTOMER INFORMATION

IT IS FURTHER ORDERED that the Defendants, Defendants’ officers, agents, 

employees, attorneys, and all other persons in active concert or participation with any of them, 

who receive actual notice of this Order, whether acting directly or indirectly, are permanently 

restrained and enjoined from directly or indirectly: 

A. Failing to provide sufficient customer information to enable the Plaintiffs to 

efficiently administer consumer redress. If a representative of the Plaintiffs requests in writing 

any information related to redress, the Defendants must provide it, in the form prescribed by the

Plaintiffs, within 14 days.

B. Disclosing, using, or benefitting from customer information, including the name, 

address, telephone number, email address, social security number, other identifying information, 

or any data that enables access to a customer’s account (including a credit card, bank account, or 

other financial account), that the Defendants obtained prior to entry of this Order in connection 

with the Defendants’ marketing or sale of real estate investment training and coaching programs; 

and

C. Failing to destroy such customer information in all forms in their possession, 

custody, or control within 30 days after receipt of written direction to do so from a representative 

of the Plaintiffs.

Provided, however, that customer information need not be disposed of, and may be 

disclosed, to the extent that use is consistent with Section I of this Order, requested by a 

government agency or required by law, regulation, or court order.

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36630 Page 9 of 47
10

VII. ORDER ACKNOWLEDGMENTS

IT IS FURTHER ORDERED that Defendants obtain acknowledgments of receipt of this 

Order:

Each Defendant, within 7 days of entry of this Order, must submit to the 

Commission an acknowledgment of receipt of this Order sworn under penalty of perjury.

For 5 years after entry of this Order, each Individual Defendant for any business 

that such Defendants, individually or collectively with any other Defendants, is the majority 

owner or controls directly or indirectly, and each Corporate Defendant, must deliver a copy of 

this Order to: (1) all principals, officers, directors, and LLC managers and members; (2) all 

employees having managerial responsibilities for conduct related to the subject matter of the 

Order and all agents and representatives who participate in conduct related to the subject matter 

of the Order; and (3) any business entity resulting from any change in structure as set forth in the 

Section titled Compliance Reporting. Delivery must occur within 7 days of entry of this Order 

for current personnel. For all others, delivery must occur before they assume their 

responsibilities.

From each individual or entity to which a Defendant delivered a copy of this 

Order, that Defendant must obtain, within 30 days, a signed and dated acknowledgment of

receipt of this Order.

VIII. COMPLIANCE REPORTING

IT IS FURTHER ORDERED that Defendants make timely submissions to the Plaintiffs:

One year after entry of this Order, each Defendant must submit a compliance 

report, sworn under penalty of perjury:

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36631 Page 10 of 47
11

1. Each Defendant must: (a) identify the primary physical, postal, and email 

address and telephone number, as designated points of contact, which 

representatives of the Commission or the Division may use to 

communicate with Defendant; (b) identify all of that Defendant's 

businesses by all of their names, telephone numbers, and physical, postal, 

email, and Internet addresses; (c) describe the activities of each business, 

including the goods and services offered, the means of advertising, 

marketing, and sales, and the involvement of any other Defendant (which 

Individual Defendants must describe if they know or should know due to 

their own involvement); (d) describe in detail whether and how that 

Defendant is in compliance with each Section of this Order; and (e) 

provide a copy of each Order Acknowledgment obtained pursuant to this 

Order, unless previously submitted to the Commission and the Division. 

2. Additionally, each Individual Defendant must: (a) identify all telephone 

numbers and all physical, postal, email and Internet addresses, including 

all residences; (b) identify all business activities, including any business 

for which such Defendant performs services whether as an employee or 

otherwise and any entity in which such Defendant has any ownership 

interest; and (c) describe in detail such Defendant’s involvement in each 

such business, including title, role, responsibilities, participation, 

authority, control, and any ownership. 

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36632 Page 11 of 47
12

For 10 years after entry of this Order, each Defendant must submit a compliance 

notice, sworn under penalty of perjury, within 14 days of any change in the following: 

1. Each Defendant must report any change in: (a) any designated point of 

contact; or (b) the structure of any Corporate Defendant or any entity that 

Defendant has any ownership interest in or controls directly or indirectly 

that may affect compliance obligations arising under this Order, including: 

creation, merger, sale, or dissolution of the entity or any subsidiary, 

parent, or affiliate that engages in any acts or practices subject to this 

Order.

2. Additionally, each Individual Defendant must report any change in: 

(a) name, including aliases or fictitious name, or residence address; or 

(b) title or role in any business activity, including any business for which 

such Defendant performs services whether as an employee or otherwise 

and any entity in which such Defendant has any ownership interest, and 

identify the name, physical address, and any Internet address of the 

business or entity. 

Each Defendant must submit to the Commission and the Division notice of the 

filing of any bankruptcy petition, insolvency proceeding, or similar proceeding by or against 

such Defendant within 14 days of its filing.

Any submission to the Plaintiffs required by this Order to be sworn under penalty 

of perjury must be true and accurate and comply with 28 U.S.C. § 1746, such as by concluding: 

“I declare under penalty of perjury under the laws of the United States of America that the 

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36633 Page 12 of 47
13

foregoing is true and correct. Executed on: _____” and supplying the date, signatory’s full name, 

title (if applicable), and signature.

Unless otherwise directed by a Commission representative in writing, all 

submissions to the Commission pursuant to this Order must be emailed to DEbrief@ftc.gov or 

sent by overnight courier (not the U.S. Postal Service) to: Associate Director for Enforcement, 

Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, 

Washington, DC 20580. The subject line must begin: FTC v. Nudge, LLC (et al.) (X200004)

(Name of the Defendant).

Unless otherwise directed by a Division representative in writing, all submissions 

to the Division pursuant to this Order must be emailed to consumerprotection@utah.gov or sent 

by overnight courier (not the U.S. Postal Service) to: Director, Utah Division of Consumer 

Protection, Heber M. Wells Building, 160 East 300 South, P.O. Box 146704, Salt Lake City, 

Utah 84114-6704. The subject line must begin: FTC v. Nudge, LLC (et al.) (X200004) (Name of 

the Defendant).

IX. RECORDKEEPING

IT IS FURTHER ORDERED that Defendants must create certain records for 10 years 

after entry of the Order, and retain each such record for 5 years. Specifically, each Corporate 

Defendant for sales of all goods and services and each Individual Defendant for any business that 

such Defendant, individually or collectively with any other Defendant, is a majority owner or 

controls directly or indirectly, must create and retain the following records:

Accounting records showing the revenues from all goods or services sold;

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36634 Page 13 of 47
14

Personnel records showing, for each person providing services, whether as an 

employee or otherwise, that person’s: name; addresses; telephone numbers; job title or position; 

dates of service; and (if applicable) the reason for termination;

Records of all consumer complaints and refund requests, whether received 

directly or indirectly, such as through a third party, and any response;

All records necessary to demonstrate full compliance with each provision of this 

Order, including all submissions to the Commission; and 

A copy of each unique advertisement or other marketing material. 

X. COMPLIANCE MONITORING

IT IS FURTHER ORDERED that, for the purpose of monitoring Defendants’ compliance 

with this Order, including any failure to transfer any assets as required by this Order:

A. Within 14 days of receipt of a written request from a representative of the 

Commission or the Division, each Defendant must: submit additional compliance reports or 

other requested information, which must be sworn under penalty of perjury; appear for 

depositions; and produce documents for inspection and copying. The Commission and the 

Division are also authorized to obtain discovery, without further leave of court, using any of the 

procedures prescribed by Federal Rules of Civil Procedure 29, 30 (including telephonic 

depositions), 31, 33, 34, 36, 45, and 69.

B. For matters concerning this Order, the Commission and the Division are 

authorized to communicate directly with each Defendant. Each Defendant must permit 

representatives of the Commission and the Division to interview any employee or other person 

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36635 Page 14 of 47
15

affiliated with any Defendant who has agreed to such an interview. The person interviewed may 

have counsel present.

C. The Commission and the Division may use all other lawful means, including 

posing, through their representatives as consumers, suppliers, or other individuals or entities, to 

Defendants or any individual or entity affiliated with Defendants, without the necessity of 

identification or prior notice. Nothing in this Order limits the Commission’s lawful use of 

compulsory process, pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b-1.

D. Upon written request from a representative of the Commission or the Division, 

any consumer reporting agency must furnish consumer reports concerning Individual 

Defendants, pursuant to Section 604(1) of the Fair Credit Reporting Act, 15 U.S.C. 

§1681b(a)(1).

XI. RETENTION OF JURISDICTION

IT IS FURTHER ORDERED that this Court retains jurisdiction of this matter for 

purposes of construction, modification, and enforcement of this Order.

Signed May 18, 2023.

BY THE COURT

________________________________________

David Barlow

United States District Judge

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36636 Page 15 of 47
16

Brian N. Lasky o.!!P;:;;u? 

Christopher Y. Miller 

Karen Dahlberg O'Connell 

Vikram Jagadish 

Savvas S. Diacosavvas 

Jordan X. Navarrette 

Adam K. Hersh 

(Each appearing per DUCivR 83-1. l (b)(l )) 

Federal Trade Commission 

One Bowling Green, Suite 318 

New York, NY 10004 

Telephone: (212) 607-2808 (D. Lubetzky) 

Fax: (212) 607-2822 

Email: dlubetzky@ftc.gov 

Attorneys for Plaintiff 

FEDERAL TRADE COMMISSION 
I MER PROTECTION: 

Date: 

) 

ey General 

tah Attorne) eneral's Office 

160 East 300 South, Fifth Floor 

Salt Lake City, Utah 84114 

Tel: (801) 366-0310 

crapo@agutah.gov 

mgadd@agutah.gov 

Attorneys for Plaintiff 

UTAH DIVISION OF CONSUMER 

PROTECTION 

FOR DEFEND ANT S: 

Date: 

Erik A. Christiansen (Bar No. 7372) 

Zack. L. Winzeler (Bar No. 12280) 

Alan S. Mouritsen (Bar No. 13558) 

Gregory H. Gunn (Bar No. 15610) 

PAR SONS BEHLE & L ATIMER 

201 South Main Street, Suite 1800 

P.O. Box 45898 

Salt Lake City, Utah 84111 

Telephone: (801) 532-1234 

EChristiansen@parsonsbehle.com 

ZWinzeler@parsonsbehle.com 

AMouritsen@parsonsbehle.com 

GGunn@parsonsbehle.com 

ecf@parsons behle. com 

Attorneys for Nudge Defendants 

Leonard L. Gordon (pro hac vice) 

Alexandra Megaris (pro hac vice) 

VENABLELLP 

1270 Avenue of the Americas 

24th Floor 

New York, NY 10020 

Telephone: (212) 370-6277 

Fax: (212) 307-5598 

17

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36638 Page 17 of 47
UTAH DIVISION OF CONSlJl\'IER P ROTECTION: 

Date: 

Douglas Crapo ( 14620) 

Michael Gadd ( 13 704) 

Assistant Attorney General 

Utah Attorney General's Office 

160 East 300 South, Fifth Floor 

Salt Lake City, Utah 84114 

Tel: (801) 366-0310 

crapo@agutah.gov 

mgadd@agutah.gov 

Attorneys for Plaintiff 

UT AH DIVISION OF CONSUMER 

PROTECTION 

FOR DEFENDANTS: 

"'\ 

Date: Ei:tf A. Christtansen (B�No. 7372) 

Zack. L. Winzeler (Bar No. 12280) 

Alan S. Mouritsen (Bar No. 13558) 

Greg01y H. Gunn (Bar No. 15610) 

PARSONS BEHLE & LATIMER

201 South Main Street, Suite 1800 

P.O. Box 45898 

Salt Lake City, Utah 84111 

Telephone: (801) 532-1234 

EChristiansen@parsonsbehle.com 

ZWinzel er@parsonsb ehle. com 

AMouritsen@parsonsbehle.com 

GGunn@parsonsbehle.com 

ecf@parsonsbehl e. com 

Attorneys for Nudge Defendants 

Leonard L. Gordon (pro hac vice) 

Alexandra Megaris (pro hac vice) 

VENABLE LLP 

1270 Avenue of the Americas 

24th Floor 

New York, NY 10020 

Telephone: (212) 370-6277 

Fax: (212) 307-5598 

18

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36639 Page 18 of 47
LLGordon@venable.com 

Al\l1egaiis@Venable.com 

J. Douglas Baldridge (pro hac vice)

Vincent E. VerTOcchio (pro hac vice)

Michael A Munoz (pro hac vice)

Christopher J. Ricigliano (pro hac vice)

VENABLELLP 

600 Massachusetts Ave., N.W. 

Washington, D.C. 20001 

Telephone: (202) 344-4000 

JBaldridge@venable.com 

VEVerrocchio@venable.com 

MAMunoz@venable.com 

CJRicigliano@venable.com 

Attorneys for Nudge Defendants 

I Date: 

Rya n C(foelclan, individually, and as an 

o�N C and Buy PD, � LLC 

r:;;-/ 1 Date: � / 'Z"s.

Phillip W-:-Smith, individually, and as an 

owi1er o:qResponse Marketing Group, LLC 

\ 

) 

' I Date: 

Shawn LFinnegan, individually, and as a 

, · princ�tf Re�ponse Marketing Group, LLC 

!1 i

; V I. . { \_)v, kJt,e\:-- Date: 

Clint R. Sanderson, individually 

19

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36640 Page 19 of 47

\ 

\ 
ATTACHMENT A 

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36641 Page 20 of 47
Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36642 Page 21 of 47

AUTHENTICATE9 U.S. GOVERNMENT 

INFORMATION 

PO 

Federal Trade Commission §310.2 

APPENDIX A TO PART 309---FIGURES FOR PART 309 

MINIMUM 

90°/o 

METHANE 

Figure l 

ELECTRICITY 

9.6 kW 

240 vac/40 amps 

CONDUCTIVE 

Figure 3 

HYDROGEN 

MINIMUM 

98°/o 

HYDROGEN 

Fi g ure 2 

[60 FR 26955, May 19, 1995, as amended at 69 FR 55339, Sept. 14, 2004; 78 FR 23835, Apr. 23, 2013] 

PART 310-TELEMARKETING SALES § 310.1 Scope of regulations in this 

RULE part. 

This part implements the TeleSec. marketing and Consumer Fraud and 

310.1 Scope of regulations in this part. Abuse Prevention Act, 15 U.S.C. 6101-

310.2 Definitions. 6108, as amended. 

310.3 Deceptive telemarketing acts or practices. § 310.2 Definitions. 

310.4 Abusive telemarketing acts or prac- (a) Acquirer means a business organi- tices. zation, financial institution, or an 310.5 Recordkeeping requirements. agent of a business organization or fi- 310.6 Exemptions. nancial institution that has authority 310.7 Actions by states and private persons. from an organization that operates or 310.8 Fee for access to the National Do Not licenses a credit card system to author- Call Registry. 

310.9 Severability. ize merchants to accept, transmit, or process payment by credit card 

AUTHORITY: 15 U.S.C. 6101--u108. through the credit card system for 

SOURCE: 75 FR 48516, Aug. 10, 2010, unless money, goods or services, or anything 

otherwise noted. else of value. 

385 
Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36643 Page 22 of 47

§310.2 

(b) Attorney General means the chief 

legal officer of a state. 

(c) Billing information means any data 

that enables any person to access a customer's or donor's account, such as a credit card, checking, savings, share or similar account, utility bill, mortgage loan account, or debit card. 

(d) Caller identification service means a service that allows a telephone subscriber to have the telephone number, 

and, where available, name of the calling party transmitted contemporaneously with the telephone call, and 

displayed on a device in or connected 

to the subscriber's telephone. 

(e) Cardholder means a person to 

whom a credit card is issued or who is 

authorized to use a credit card on behalf of or in addition to the person to 

whom the credit card is issued. 

(f) Cash-to-cash money transfer means the electronic (as defined in section 

106(2) of the Electronic Signatures in 

Global and National Commerce Act (15 

U.S.C. 7006(2)) transfer of the value of 

cash received from one person to an- other person in a different location 

that is sent by a money transfer provider and received in the form of cash. 

For purposes of this definition, money 

transfer provider means any person or financial institution that provides 

cash-to-cash money transfers for a per- son in the normal course of its business, whether or not the person holds an account with such person or financial institution. The term cash-to-cash 

money transfer includes a remittance 

transfer, as defined in section 919(g)(2) 

of the Electronic Fund Transfer Act 

("EFTA"), 15 U.S.C. 1693a, that is a cash-to-cash transaction; however it 

does not include any transaction that 

is: 

(1) An electronic fund transfer as defined in section 903 of the EFTA; 

(2) Covered by Regulation E, 12 CFR 

1005.20, pertaining to gift cards; or (3) Subject to the Truth in Lending 

Act, 15 U.S.C. 1601 et seq. 

(g) Cash reload mechanism is a device, 

authorization code, personal identification number, or other security measure that makes it possible for a person to 

convert cash into an electronic (as defined in section 106(2) of the Electronic 

Signatures in Global and National 

Commerce Act (15 U.S.C. 7006(2)) form 

16 CFR Ch. I (1-1-21 Edition) 

that can be used to add funds to a general-use prepaid card, as defined in 

Regulation E, 12 CFR 1005.2, or an account with a payment intermediary. 

For purposes of this definition, a cash 

reload mechanism is not itself a general-use prepaid debit card or a swipe 

reload process or similar method in 

which funds are added directly onto a person's own general-use prepaid card 

or account with a payment intermediary. 

(h) Charitable contribution means any 

donation or gift of money or any other 

thing of value. 

(i) Commission means the Federal 

Trade Commission. 

(j) Credit means the right granted by a creditor to a debtor to defer payment 

of debt or to incur debt and defer its 

payment. 

(k) Credit card means any card, plate, 

coupon book, or other credit device ex- isting for the purpose of obtaining 

money, property, labor, or services on 

credit. 

(1) Credit card sales draft means any 

record or evidence of a credit card 

transaction. 

(m) Credit card system means any 

method or procedure used to process 

credit card transactions involving credit cards issued or licensed by the opera tor of that system. 

(n) Customer means any person who is or may be required to pay for goods or services offered through telemarketing. 

( o) Debt relief service means any program or service represented, directly or by implication, to renegotiate, settle, 

or in any way alter the terms of payment or other terms of the debt between a person and one or more unse- cured creditors or debt collectors, including, but not limited to, a reduction 

in the balance, interest rate, or fees 

owed by a person to an unsecured creditor or debt collector. 

(p) Donor means any person solicited 

to make a charitable contribution. 

(q) Established business relationship 

means a relationship between a seller 

and a consumer based on: 

(1) the consumer's purchase, rental, or lease of the seller's goods or services 

or a financial transaction between the 

386 
Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36644 Page 23 of 47

Federal Trade Commission 

consumer and seller, within the eight- een (18) months immediately preceding 

the date of a telemarketing call; or (2) the consumer's inquiry or application regarding a product or service offered by the seller, within the three (3) 

months immediately preceding the 

date of a telemarketing call. 

(r) Free-to-pay conversion means, in an offer or agreement to sell or provide 

any goods or services, a provision 

under which a customer receives a product or service for free for an initial 

period and will incur an obligation to 

pay for the product or service if he or she does not take affirmative action to 

cancel before the end of that period. 

(s) Investment opportunity means anything, tangible or intangible, that is offered, offered for sale, sold, or traded 

based wholly or in part on representations, either express or implied, about 

past, present, or future income, profit, or appreciation. 

(t) Material means likely to affect a person's choice of, or conduct regarding, goods or services or a charitable 

contribution. 

(u) Merchant means a person who is 

authorized under a written contract 

with an acquirer to honor or accept 

credit cards, or to transmit or process 

for payment credit card payments, for 

the purchase of goods or services or a charitable contribution. 

(v) Merchant agreement means a written contract between a merchant and an acquirer to honor or accept credit 

cards, or to transmit or process for 

payment credit card payments, for the 

purchase of goods or services or a charitable contribution. 

(w) Negative option feature means, in 

an offer or agreement to sell or provide 

any goods or services, a provision 

under which the customer's silence or failure to take an affirmative action to 

reject goods or services or to cancel the 

agreement is interpreted by the seller as acceptance of the offer. 

(x) Outbound telephone call means a telephone call initiated by a telemarketer to induce the purchase of 

goods or services or to solicit a charitable contribution. 

(y) Person means any individual, 

group, unincorporated association, limited or general partnership, corporation, or other business entity. 

§310.2 

(z) ?reacquired account information 

means any information that enables a seller or telemarketer to cause a charge to be placed against a cus- tomer's or donor's account without obtaining the account number directly 

from the customer or donor during the 

telemarketing transaction pursuant to 

which the account will be charged. 

(aa) Prize means anything offered, or purportedly offered, and given, or purportedly given, to a person by chance. 

For purposes of this definition, chance 

exists if a person is guaranteed to re- ceive an item and, at the time of the 

offer or purported offer, the telemarketer does not identify the specific 

item that the person will receive. 

(bb) Prize promotion means: (1) A sweepstakes or other game of 

chance;or 

(2) An oral or written express or implied representation that a person has 

won, has been selected to receive, or may be eligible to receive a prize or purported prize. 

(cc) Remotely created payment order 

means any payment instruction or order drawn on a person's account that 

is created by the payee or the payee's 

agent and deposited into or cleared 

through the check clearing system. 

The term includes, without limitation, a "remotely created check," as defined 

in Regulation CC, Availability of 

Funds and Collection of Checks, 12 CFR 

229.2(fff), but does not include a payment order cleared through an Automated Clearinghouse (ACH) Network or subject to the Truth in Lending Act, 15 

U.S.C. 1601 et seq., and Regulation Z, 12 

CFR part 1026. 

(dd) Seller means any person who, in 

connection with a telemarketing transaction, provides, offers to provide, or arranges for others to provide goods or services to the customer in exchange 

for consideration. 

(ee) State means any state of the 

United States, the District of Columbia, Puerto Rico, the Northern Mariana 

Islands, and any territory or possession 

of the United States. 

(ff) Telemarketer means any person 

who, in connection with telemarketing, 

initiates or receives telephone calls to or from a customer or donor. 

(gg) Telemarketing means a plan, program, or campaign which is conducted 

387 
Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36645 Page 24 of 47

§310.3 

to induce the purchase of goods or serv- ices or a charitable contribution, by use of one or more telephones and 

which involves more than one interstate telephone call. The term does not 

include the solicitation of sales 

through the mailing of a catalog 

which: contains a written description or illustration of the goods or services 

offered for sale; includes the business 

address of the seller; includes multiple 

pages of written material or illustrations; and has been issued not less frequently than once a year, when the 

person making the solicitation does 

not solicit customers by telephone but 

only receives calls initiated by cus- tomers in response to the catalog and 

during those calls takes orders only 

without further solicitation. For purposes of the previous sentence, the 

term "further solicitation" does not 

include providing the customer with 

information about, or attempting to 

sell, any other item included in the same catalog which prompted the cus- tomer's call or in a substantially similar catalog. 

(hh) Upselling means soliciting the 

purchase of goods or services following an initial transaction during a single 

telephone call. The upsell is a separate 

telemarketing transaction, not a con- tinuation of the initial transaction. An 

"external upsell" is a solicitation 

made by or on behalf of a seller different from the seller in the initial 

transaction, regardless of whether the 

initial transaction and the subsequent 

solicitation are made by the same telemarketer. An "internal upsell" is a so- licitation made by or on behalf of the same seller as in the initial transaction, regardless of whether the initial transaction and subsequent solicitation are made by the same telemarketer. 

[75 FR 48516, Aug. 10, 2010, as amended at 80 

FR 77557, Dec. 14, 2015] 

§ 310.3 Deceptive telemarketing acts or practices. 

(a) Prohibited deceptive telemarketing 

acts or practices. It is a deceptive telemarketing act or practice and a violation of this Rule for any seller or telemarketer to engage in the following 

conduct: 

3

(1) Before a customer consents to 

pay 659 for goods or services offered, 

failing to disclose truthfully, in a clear 

and conspicuous manner, the following 

material information: 

(i) The total costs to purchase, receive, or use, and the quantity of, any 

goods or services that are the subject 

of the sales offer; 660 

(ii) All material restrictions, limitations, or conditions to purchase, receive, or use the goods or services that 

are the subject of the sales offer; 

(iii) If the seller has a policy of not 

making refunds, cancellations, exchanges, or repurchases, a statement 

informing the customer that this is the 

seller's policy; or, if the seller or telemarketer makes a representation 

about a refund, cancellation, exchange, 

or repurchase policy, a statement of all 

material terms and conditions of such 

policy; 

(iv) In any prize promotion, the odds 

of being able to receive the prize, and, 

if the odds are not calculable in advance, the factors used in calculating 

the odds; that no purchase or payment 

is required to win a prize or to participate in a prize promotion and that any 

purchase or payment will not increase 

the person's chances of winning; and 

the no-purchase/no-payment method of 

participating in the prize promotion 

with either instructions on how to participate or an address or local or tollfree telephone number to which customers may write or call for information on how to participate; 

659 When a seller or telemarketer uses, or 

directs a customer to use, a courier to transport payment, the seller or telemarketer 

must make the disclosures required by 

§310.3(a)(l) before sending a courier to pick 

up payment or authorization for payment, or 

directing a customer to have a courier pick 

up payment or authorization for payment. In 

the case of debt relief services, the seller or 

telemarketer must make the disclosures required by §310.3(a)(l) before the consumer enrolls in an offered program. 660 For offers of consumer credit products 

subject to the Truth in Lending Act, 15 

U.S.C. 1601 et seq., and Regulation Z, 12 CFR 

226, compliance with the disclosure requirements under the Truth in Lending Act and 

Regulation Z shall constitute compliance 

with § 310.3(a)(l)(i) of this Rule. 

16 CFR Ch. I (1-1-21 Edition) 

88
Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36646 Page 25 of 47

Federal Trade Commission §310.3 

(v) All material costs or conditions 

to receive or redeem a prize that is the 

subject of the prize promotion; 

(vi) In the sale of any goods or serv- ices represented to protect, insure, or otherwise limit a customer's liability 

in the event of unauthorized use of the 

customer's credit card, the limits on a cardholder's liability for unauthorized use of a credit card pursuant to 15 

u.s.c. 1643; 

(vii) If the offer includes a negative 

option feature, all material terms and 

conditions of the negative option feature, including, but not limited to, the 

fact that the customer's account will 

be charged unless the customer takes an affirmative action to avoid the 

charge(s), the date(s) the charge(s) will 

be submitted for payment, and the specific steps the customer must take to 

avoid the charge(s); and 

(viii) In the sale of any debt relief 

service: 

(A) the amount of time necessary to 

achieve the represented results, and to 

the extent that the service may include a settlement offer to any of the cus- tomer's creditors or debt collectors, 

the time by which the debt relief serv- ice provider will make a bona fide settlement offer to each of them; 

(B) to the extent that the service 

may include a settlement offer to any 

of the customer's creditors or debt collectors, the amount of money or the 

percentage of each outstanding debt 

that the customer must accumulate before the debt relief service provider 

will make a bona fide settlement offer 

to each of them; 

(C) to the extent that any aspect of 

the debt relief service relies upon or re- sults in the customer's failure to make 

timely payments to creditors or debt 

collectors, that the use of the debt re- lief service will likely adversely affect 

the customer's creditworthiness, may 

result in the customer being subject to 

collections or sued by creditors or debt 

collectors, and may increase the 

amount of money the customer owes due to the accrual of fees and interest; 

and 

(D) to the extent that the debt relief 

service requests or requires the cus- tomer to place funds in an account at an insured financial institution, that 

the customer owns the funds held in 

38

the account, the customer may withdraw from the debt relief service at any 

time without penalty, and, if the customer withdraws, the customer must 

receive all funds in the account, other 

than funds earned by the debt relief 

service in compliance with 

§ 310.4(a)(5)(i)(A) through (C). 

(2) Misrepresenting, directly or by 

implication, in the sale of goods or 

services any of the following material 

information: 

(i) The total costs to purchase, re- ceive, or use, and the quantity of, any 

goods or services that are the subject 

of a sales offer; 

(ii) Any material restriction, limitation, or condition to purchase, receive, 

or use goods or services that are the 

subject of a sales offer; 

(iii) Any material aspect of the performance, efficacy, nature, or central 

characteristics of goods or services 

that are the subject of a sales offer; 

(iv) Any material aspect of the nature or terms of the seller's refund, 

cancellation, exchange, or repurchase 

policies; 

(v) Any material aspect of a prize 

promotion including, but not limited 

to, the odds of being able to receive a prize, the nature or value of a prize, or 

that a purchase or payment is required 

to win a prize or to participate in a prize promotion; 

(vi) Any material aspect of an investment opportunity including, but not 

limited to, risk, liquidity, earnings potential, or profitability; 

(vii) A seller's or telemarketer's affiliation with, or endorsement or sponsorship by, any person or government 

entity; 

(viii) That any customer needs offered goods or services to provide protections a customer already has pursuant to 15 U.S.C. 1643; 

(ix) Any material aspect of a negative option feature including, but not 

limited to, the fact that the customer's 

account will be charged unless the customer takes an affirmative action to 

avoid the charge(s), the date(s) the 

charge(s) will be submitted for payment, and the specific steps the customer must take to avoid the 

charge(s); or 

9 
Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36647 Page 26 of 47

§310.3 

(x) Any material aspect of any deb

relief service, including, but not lim

ited to, the amount of money or th

percentage of the debt amount that 

customer may save by using such serv ice; the amount of time necessary t

achieve the represented results; th

amount of money or the percentage 

each outstanding debt that the cus tomer must accumulate before the pro

vider of the debt relief service will ini

tiate attempts with the customer'

creditors or debt collectors or make 

bona fide offer to negotiate, settle, o modify the terms of the customer'

debt; the effect of the service on a cus tomer's creditworthiness; the effect 

the service on collection efforts of th

customer's creditors or debt collectors

the percentage or number of customer

who attain the represented results; an whether a debt relief service is offere or provided by a non-profit entity. 

(3) Causing billing information to b

submitted for payment, or collecting o attempting to collect payment fo

goods or services or a charitable con tribution, directly or indirectly, with

out the customer's or donor's expres

verifiable authorization, except whe

the method of payment used is a cred

card subject to protections of th

Truth in Lending Act and Regulatio

Z,661 or a debit card subject to the pro

tections of the Electronic Fund Trans

fer Act and Regulation E.662 Such au thorization shall be deemed verifiabl

if any of the following means is em ployed: 

(i) Express written authorization b

the customer or donor, which include

the customer's or donor's signature;ss3 

(ii) Express oral authorization whic

is audio-recorded and made availabl

upon request to the customer or donor

and the customer's or donor's bank o other billing entity, and which evi

dences clearly both the customer's o

661 Truth in Lending Act, 15 U.S.C. 1601 

seq., and Regulation Z, 12 CFR part 226. 662 Electronic Fund Transfer Act, 15 U.S.

1693 et seq., and Regulation E, 12 CFR pa

205. 663 For purposes of this Rule, the ter

"signature" shall include an electronic 

digital form of signature, to the extent th

such form of signature is recognized as 

valid signature under applicable federal la

or state contract law. 

t 

-

e 

a 

-

o 

e 

of 

-

-

-

s 

a 

r 

s 

-

of 

e 

; 

s 

d 

d 

e 

r 

r 

-

-

s 

n 

it 

e 

n 

-

-

-

e 

-

y 

s 

h 

e 

, 

r 

-

r 

et 

C. 

rt 

m 

or 

at 

a 

w 

16 CFR Ch. I (1-1-21 Edition) 

donor's authorization of payment for 

the goods or services or charitable con- tribution that are the subject of the 

telemarketing transaction and the cus- tomer's or donor's receipt of all of the 

following information: 

(A) An accurate description, clearly 

and conspicuously stated, of the goods or services or charitable contribution 

for which payment authorization is 

sought; 

(B) The number of debits, charges, or payments (if more than one); 

(C) The date(s) the debit(s), charge(s), or payment(s) will be submitted for 

payment; 

(D) The amount(s) of the debit(s), 

charge(s), or payment(s); 

(E) The customer's or donor's name; 

(F) The customer's or donor's billing 

information, identified with sufficient 

specificity such that the customer or donor understands what account will 

be used to collect payment for the 

goods or services or charitable con- tribution that are the subject of the 

telemarketing transaction; 

(G) A telephone number for customer or donor inquiry that is answered during normal business hours; and 

(H) The date of the customer's or donor's oral authorization; or 

(iii) Written confirmation of the 

transaction, identified in a clear and 

conspicuous manner as such on the 

outside of the envelope, sent to the 

customer or donor via first class mail 

prior to the submission for payment of 

the customer's or donor's billing information, and that includes all of the information contained in 

§§ 310.3(a)(3)(ii)(A)-(G) and a clear and 

conspicuous statement of the procedures by which the customer or donor can obtain a refund from the seller or telemarketer or charitable organization in the event the confirmation is 

inaccurate; provided, however, that 

this means of authorization shall not 

be deemed verifiable in instances in 

which goods or services are offered in a transaction involving a free-to-pay 

conversion and preacquired account information. 

( 4) Making a false or misleading 

statement to induce any person to pay 

for goods or services or to induce a charitable contribution. 

390 
Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36648 Page 27 of 47

Federal Trade Commission §310.4 

91 

(b) Assisting and facilitating. It is a deceptive telemarketing act or practice 

and a violation of this Rule for a per- son to provide substantial assistance or support to any seller or telemarketer 

when that person knows or consciously 

avoids knowing that the seller or telemarketer is engaged in any act or practice that violates §§310.3(a), (c) or (d), or § 310.4 of this Rule. 

(c) Credit card laundering. Except as expressly permitted by the applicable 

credit card system, it is a deceptive 

telemarketing act or practice and a violation of this Rule for: 

(1) A merchant to present to or deposit into, or cause another to present 

to or deposit into, the credit card system for payment, a credit card sales 

draft generated by a telemarketing 

transaction that is not the result of a telemarketing credit card transaction 

between the cardholder and the mer- chant; 

(2) Any person to employ, solicit, or 

otherwise cause a merchant, or an em- ployee, representative, or agent of the 

merchant, to present to or deposit into 

the credit card system for payment, a credit card sales draft generated by a telemarketing transaction that is not 

the result of a telemarketing credit 

card transaction between the cardholder and the merchant; or (3) Any person to obtain access to the 

credit card system through the use of a business relationship or an affiliation 

with a merchant, when such access is 

not authorized by the merchant agreement or the applicable credit card system. 

(d) Prohibited deceptive acts or practices in the solicitation of charitable contributions. It is a fraudulent charitable 

solicitation, a deceptive telemarketing 

act or practice, and a violation of this 

Rule for any telemarketer soliciting 

charitable contributions to misrepresent, directly or by implication, any of 

the following material information: 

(1) The nature, purpose, or mission of 

any entity on behalf of which a charitable contribution is being requested; 

(2) That any charitable contribution 

is tax deductible in whole or in part; 

(3) The purpose for which any charitable contribution will be used; 

(4) The percentage or amount of any 

charitable contribution that will go to 

3

a charitable organization or to any 

particular charitable program; 

(5) Any material aspect of a prize 

promotion including, but not limited 

to: the odds of being able to receive a prize; the nature or value of a prize; or that a charitable contribution is re- quired to win a prize or to participate 

in a prize promotion; or 

(6) A charitable organization's or telemarketer's affiliation with, or en- dorsement or sponsorship by, any per- son or government entity. 

[75 FR 48516, Aug. 10, 2010, as amended at 80 

FR 77558, Dec. 14, 2015] 

§ 310.4 Abusive telemarketing acts or practices. 

(a) Abusive conduct generally. It is an abusive telemarketing act or practice 

and a violation of this Rule for any 

seller or telemarketer to engage in the 

following conduct: 

(1) Threats, intimidation, or the use of profane or obscene language; 

(2) Requesting or receiving payment 

of any fee or consideration for goods or services represented to remove derogatory information from, or improve, a person's credit history, credit record, or credit rating until: 

(i) The time frame in which the seller 

has represented all of the goods or services will be provided to that person 

has expired; and 

(ii) The seller has provided the person 

with documentation in the form of a consumer report from a consumer re- porting agency demonstrating that the 

promised results have been achieved, 

such report having been issued more than six months after the results were achieved. Nothing in this Rule should 

be construed to affect the requirement 

in the Fair Credit Reporting Act, 15 

U.S.C. 1681, that a consumer report 

may only be obtained for a specified 

permissible purpose; 

(3) Requesting or receiving payment 

of any fee or consideration from a per- son for goods or services represented to recover or otherwise assist in the re- turn of money or any other i tern of 

value paid for by, or promised to, that 

person in a previous transaction, until seven (7) business days after such 

money or other item is delivered to 

that person. This provision shall not 
Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36649 Page 28 of 47

§310.4 16 

apply to goods or services provided to a person by a licensed attorney; 

(4) Requesting or receiving payment 

of any fee or consideration in advance 

of obtaining a loan or other extension 

of credit when the seller or telemarketer has guaranteed or represented a high likelihood of success in 

obtaining or arranging a loan or other 

extension of credit for a person; 

(5)(i) Requesting or receiving payment of any fee or consideration for 

any debt relief service until and unless: 

(A) The seller or telemarketer has re- negotiated, settled, reduced, or otherwise altered the terms of at least one debt pursuant to a settlement agreement, debt management plan, or other 

such valid contractual agreement exe- cuted by the customer; 

(B) The customer has made at least one payment pursuant to that settlement agreement, debt management 

plan, or other valid contractual agreement between the customer and the 

creditor or debt collector; and 

(C) To the extent that debts enrolled 

in a service are renegotiated, settled, 

reduced, or otherwise altered individually, the fee or consideration either: 

(1) Bears the same proportional relationship to the total fee for renegotiating, settling, reducing, or altering 

the terms of the entire debt balance as the individual debt amount bears to 

the entire debt amount. The individual 

debt amount and the entire debt 

amount are those owed at the time the 

debt was enrolled in the service; or 

(2) Is a percentage of the amount 

saved as a result of the renegotiation, 

settlement, reduction, or alteration. 

The percentage charged cannot change 

from one individual debt to another. 

The amount saved is the difference between the amount owed at the time the 

debt was enrolled in the service and the 

amount actually paid to satisfy the 

debt. 

(ii) Nothing in §310.4(a)(5)(i) prohibits 

requesting or requiring the customer 

to place funds in an account to be used 

for the debt relief provider's fees and 

for payments to creditors or debt collectors in connection with the renegotiation, settlement, reduction, or other 

alteration of the terms of payment or other terms of a debt, provided that: 

CFR Ch. I (1-1-21 Edition) 

(A) The funds are held in an account 

at an insured financial institution; 

(B) The customer owns the funds held 

in the account and is paid accrued interest on the account, if any; 

(C) The entity administering the ac- count is not owned or controlled by, or 

in any way affiliated with, the debt re- lief service; 

(D) The entity administering the ac- count does not give or accept any 

money or other compensation in ex- change for referrals of business involving the debt relief service; and 

(E) The customer may withdraw from 

the debt relief service at any time 

without penalty, and must receive all 

funds in the account, other than funds 

earned by the debt relief service in 

compliance with § 310.4(a)(5)(i)(A) 

through (C), within seven (7) business 

days of the customer's request. 

(6) Disclosing or receiving, for con- sideration, unencrypted consumer ac- count numbers for use in telemarketing; provided, however, that 

this paragraph shall not apply to the 

disclosure or receipt of a customer's or donor's billing information to process a payment for goods or services or a charitable contribution pursuant to a transaction; 

(7) Causing billing information to be 

submitted for payment, directly or indirectly, without the express informed 

consent of the customer or donor. In 

any telemarketing transaction, the 

seller or telemarketer must obtain the 

express informed consent of the cus- tomer or donor to be charged for the 

goods or services or charitable con- tribution and to be charged using the 

identified account. In any telemarketing transaction involving 

preacquired account information, the 

requirements in paragraphs (a)(7)(i) 

through (ii) of this section must be met 

to evidence express informed consent. 

(i) In any telemarketing transaction 

involving preacquired account information and a free-to-pay conversion feature, the seller or telemarketer must: 

(A) Obtain from the customer, at a minimum, the last four (4) digits of the 

account number to be charged; 

(B) Obtain from the customer his or her express agreement to be charged 

for the goods or services and to be 

392 
Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36650 Page 29 of 47

Federal Trade Commission 

charged using the account number pursuant to paragraph (a)(7)(i)(A) of this 

section; and, 

(C) Make and maintain an audio re- cording of the entire telemarketing 

transaction. 

(ii) In any other telemarketing transaction involving preacquired account 

information not described in paragraph 

(a)(7)(i) of this section, the seller or 

telemarketer must: 

(A) At a minimum, identify the ac- count to be charged with sufficient 

specificity for the customer or donor to 

understand what account will be 

charged;and 

(B) Obtain from the customer or donor his or her express agreement to 

be charged for the goods or services 

and to be charged using the account 

number identified pursuant to paragraph (a)(7)(ii)(A) of this section; 

(8) Failing to transmit or cause to be 

transmitted the telephone number, 

and, when made available by the telemarketer's carrier, the name of the 

telemarketer, to any caller identification service in use by a recipient of a telemarketing call; provided that it 

shall not be a violation to substitute 

(for the name and phone number used 

in, or billed for, making the call) the name of the seller or charitable organization on behalf of which a telemarketing call is placed, and the seller's or charitable organization's cus- tomer or donor service telephone num- ber, which is answered during regular 

business hours; 

(9) Creating or causing to be created, 

directly or indirectly, a remotely cre- ated payment order as payment for 

goods or services offered or sold 

through telemarketing or as a charitable contribution solicited or sought 

through telemarketing; or 

(10) Accepting from a customer or donor, directly or indirectly, a cash-tocash money transfer or cash reload 

mechanism as payment for goods or services offered or sold through telemarketing or as a charitable contribution solicited or sought through telemarketing. 

(b) Pattern of calls. (1) It is an abusive 

telemarketing act or practice and a violation of this Rule for a telemarketer to engage in, or for a seller 

393

§310.4 

to cause a telemarketer to engage in, 

the following conduct: 

(i) Causing any telephone to ring, or engaging any person in telephone con- versation, repeatedly or continuously 

with intent to annoy, abuse, or harass 

any person at the called number; 

(ii) Denying or interfering in any 

way, directly or indirectly, with a person's right to be placed on any registry 

of names and/or telephone numbers of 

persons who do not wish to receive outbound telephone calls established to 

comply with paragraph (b)(l)(iii)(A) of 

this section, including, but not limited 

to, harassing any person who makes 

such a request; hanging up on that person; failing to honor the request; re- quiring the person to listen to a sales 

pitch before accepting the request; as- sessing a charge or fee for honoring the 

request; requiring a person to call a different number to submit the re- quest; and requiring the person to identify the seller making the call or on whose behalf the call is made; 

(iii) Initiating any outbound telephone call to a person when: 

(A) That person previously has stated 

that he or she does not wish to receive an outbound telephone call made by or on behalf of the seller whose goods or services are being offered or made on behalf of the charitable organization 

for which a charitable contribution is 

being solicited; or (B) That person's telephone number 

is on the "do-not-call" registry, maintained by the Commission, of persons 

who do not wish to receive outbound 

telephone calls to induce the purchase 

of goods or services unless the seller or telemarketer: 

(1) Can demonstrate that the seller 

has obtained the express agreement, in 

writing, of such person to place calls to 

that person. Such written agreement 

shall clearly evidence such person's au- thorization that calls made by or on behalf of a specific party may be placed 

to that person, and shall include the 

telephone number to which the calls 

may be placed and the signature 664 of 

that person; or 

664 For purposes of this Rule, the term 

"signature" shall include an electronic or digital form of signature, to the extent that 

such form of signature is recognized as a Continued 
Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36651 Page 30 of 47

§310.4 

(2) Can demonstrate that the seller 

has an established business relationship with such person, and that person 

has not stated that he or she does not 

wish to receive outbound telephone 

calls under paragraph (b)(l)(iii)(A) of 

this section; or (iv) Abandoning any outbound telephone call. An outbound telephone call 

is "abandoned" under this section if a person answers it and the telemarketer 

does not connect the call to a sales rep- resen ta ti ve within two (2) seconds of 

the person's completed greeting. 

(v) Initiating any outbound telephone 

call that delivers a prerecorded mes- sage, other than a prerecorded message 

permitted for compliance with the call 

abandonment safe harbor in 

§ 310.4(b )( 4)(iii), unless: 

(A) In any such call to induce the 

purchase of any good or service, the 

seller has obtained from the recipient 

of the call an express agreement, in 

writing, that: 

(i) The seller obtained only after a 

clear and conspicuous disclosure that 

the purpose of the agreement is to authorize the seller to place prerecorded 

calls to such person; 

(ii) The seller obtained without requiring, directly or indirectly, that the 

agreement be executed as a condition 

of purchasing any good or service; 

(iii) Evidences the willingness of the 

recipient of the call to receive calls 

that deliver prerecorded messages by or on behalf of a specific seller; and 

(iv) Includes such person's telephone 

number and signature;666 and 

(B) In any such call to induce the 

purchase of any good or service, or to 

induce a charitable contribution from a member of, or previous donor to, a nonprofit charitable organization on whose 

behalf the call is made, the seller or 

telemarketer: 

(i) Allows the telephone to ring for at 

least fifteen (15) seconds or four (4) 

rings before disconnecting an unan- swered call; and 

valid signature under applicable federal law 

or state contract law. 665 For purposes of this Rule, the term 

"signature" shall include an electronic or digital form of signature, to the extent that 

such form of signature is recognized as a 

valid signature under applicable federal law 

or state contract law. 

39

16 CFR Ch. I (1-1-21 Edition) 

(ii) Within two (2) seconds after the 

completed greeting of the person 

called, plays a prerecorded message 

that promptly provides the disclosures 

required by §310.4(d) or (e), followed 

immediately by a disclosure of one or 

both of the following: 

(A) In the case of a call that could be 

answered in person by a consumer, that 

the person called can use an automated 

interactive voice and/or keypress-activated opt-out mechanism to assert a Do Not Call request pursuant to 

§ 310.4(b)(l)(iii)(A) at any time during 

the message. The mechanism must: 

(1) Automatically add the number 

called to the seller's entity-specific Do 

Not Call list; 

(2) Once invoked, immediately disconnect the call; and 

(3) Be available for use at any time 

during the message; and 

(B) In the case of a call that could be 

answered by an answering machine or 

voicemail service, that the person 

called can use a toll-free telephone 

number to assert a Do Not Call request 

pursuant to §310.4(b)(l)(iii)(A). The 

number provided must connect directly 

to an automated interactive voice or keypress-activated opt-out mechanism 

that: 

(1) Automatically adds the number 

called to the seller's entity-specific Do 

Not Call list; 

(2) Immediately thereafter disconnects the call; and 

(3) Is accessible at any time throughout the duration of the telemarketing 

campaign; and 

(iii) Complies with all other requirements of this part and other applicable 

federal and state laws. 

(C) Any call that complies with all 

applicable requirements of this paragraph (v) shall not be deemed to violate 

§ 310.4(b)(l)(iv) of this part. 

(D) This paragraph (v) shall not apply 

to any outbound telephone call that delivers a prerecorded healthcare message made by, or on behalf of, a covered 

entity or its business associate, as 

those terms are defined in the HIP AA 

Privacy Rule, 45 CFR 160.103. 

(2) It is an abusive telemarketing act 

or practice and a violation of this Rule 

for any person to sell, rent, lease, purchase, or use any list established to 

comply with § 310.4(b)(l)(iii)(A), or 

4 
Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36652 Page 31 of 47

Federal Trade Commission 

maintained by the Commission pursuant to §310.4(b)(l)(iii)(B), for any purpose except compliance with the provisions of this Rule or otherwise to prevent telephone calls to telephone numbers on such lists. 

(3) A seller or telemarketer will not 

be liable for violating § 310.4(b)(l)(ii) 

and (iii) if it can demonstrate that, as 

part of the seller's or telemarketer's 

routine business practice: 

(i) It has established and implemented written procedures to comply 

with §310.4(b)(l)(ii) and (iii); 

(ii) It has trained its personnel, and 

any entity assisting in its compliance, 

in the procedures established pursuant 

to §310.4(b)(3)(i); 

(iii) The seller, or a telemarketer or another person acting on behalf of the 

seller or charitable organization, has 

maintained and recorded a list of telephone numbers the seller or charitable 

organization may not contact, in com- pliance with§ 310.4(b)(l)(iii)(A); 

(iv) The seller or a telemarketer uses a process to prevent telemarketing to 

any telephone number on any list es- tablished pursuant to §310.4(b)(3)(iii) or 310.4(b)(l)(iii)(B), employing a version 

of the "do-not-call" registry obtained 

from the Commission no more than 

thirty-one (31) days prior to the date 

any call is made, and maintains 

records documenting this process; 

(v) The seller or a telemarketer or 

another person acting on behalf of the 

seller or charitable organization, monitors and enforces compliance with the 

procedures established pursuant to 

§ 310.4(b )(3)(i); and 

(vi) Any subsequent call otherwise 

violating paragraph (b)(l)(ii) or (iii) of 

this section is the result of error and 

not of failure to obtain any information necessary to comply with a request pursuant to paragraph 

(b)(l)(iii)(A) of this section not to receive further calls by or on behalf of a seller or charitable organization. 

(4) A seller or telemarketer will not 

be liable for violating §310.4(b)(l)(iv) if: 

(i) The seller or telemarketer employs technology that ensures abandonment of no more than three (3) percent of all calls answered by a person, 

measured over the duration of a single 

calling campaign, if less than 30 days, or separately over each successive 30-

§310.4 

day period or portion thereof that the 

campaign continues. 

(ii) The seller or telemarketer, for 

each telemarketing call placed, allows 

the telephone to ring for at least fifteen (15) seconds or four (4) rings before 

disconnecting an unanswered call; 

(iii) Whenever a sales representative 

is not available to speak with the per- son answering the call within two (2) 

seconds after the person's completed 

greeting, the seller or telemarketer 

promptly plays a recorded message 

that states the name and telephone 

number of the seller on whose behalf 

the call was placed666 ; and 

(iv) The seller or telemarketer, in ac- cordance with §310.5(b)-(d), retains 

records establishing compliance with 

§ 310.4(b )( 4)(i)-(iii). 

(c) Calling time restrictions. Without 

the prior consent of a person, it is an abusive telemarketing act or practice 

and a violation of this Rule for a telemarketer to engage in outbound telephone calls to a person's residence at 

any time other than between 8:00 a.m. and 9:00 p.m. local time at the called 

person's location. 

(d) Required oral disclosures in the sale 

of goods or services. It is an abusive telemarketing act or practice and a violation of this Rule for a telemarketer in an outbound telephone call or internal 

or external upsell to induce the purchase of goods or services to fail to disclose truthfully, promptly, and in a 

clear and conspicuous manner to the 

person receiving the call, the following 

information: 

(1) The identity of the seller; 

(2) That the purpose of the call is to 

sell goods or services; 

(3) The nature of the goods or serv- ices; and 

(4) That no purchase or payment is 

necessary to be able to win a prize or participate in a prize promotion if a prize promotion is offered and that any 

purchase or payment will not increase 

the person's chances of winning. This 

disclosure must be made before or in 

conjunction with the description of the 

prize to the person called. If requested 

666 This provision does not affect any seller's or telemarketer's obligation to comply 

with relevant state and federal laws, including but not limited to the TCPA, 47 U.S.C. 

227, and 47 CFR part 64.1200. 

395 
Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36653 Page 32 of 47

§310.5 

by that person, the telemarketer must 

disclose the no-purchase/no-payment 

entry method for the prize promotion; 

provided, however, that, in any internal upsell for the sale of goods or serv- ices, the seller or telemarketer must 

provide the disclosures listed in this 

section only to the extent that the information in the upsell differs from the 

disclosures provided in the initial telemarketing transaction. 

(e) Required oral disclosures in charitable solicitations. It is an abusive telemarketing act or practice and a violation of this Rule for a telemarketer, in an outbound telephone call to induce a charitable contribution, to fail to disclose truthfully, promptly, and in a clear and conspicuous manner to the 

person receiving the call, the following 

information: 

(1) The identity of the charitable or- ganization on behalf of which the re- quest is being made; and 

(2) That the purpose of the call is to 

solicit a charitable contribution. 

[75 FR 48516, Aug. 10, 2010, as amended at 76 

FR 58716, Sept. 22, 2011; 80 FR 77559, Dec. 14, 

2015] 

§ 310.5 Recordkeeping requirements. 

(a) Any seller or telemarketer shall 

keep, for a period of 24 months from 

the date the record is produced, the following records relating to its telemarketing activities: 

(1) All substantially different advertising, brochures, telemarketing 

scripts, and promotional materials; 

(2) The name and last known address 

of each prize recipient and the prize 

awarded for prizes that are represented, directly or by implication, to 

have a value of $25.00 or more; 

(3) The name and last known address 

of each customer, the goods or services 

purchased, the date such goods or serv- ices were shipped or provided, and the 

amount paid by the customer for the 

goods or services;667 

(4) The name, any fictitious name used, the last known home address and 

667 For offers of consumer credit products 

subject to the Truth in Lending Act, 15 

U.S.C. 1601 et seq., and Regulation Z, 12 CFR 

226, compliance with the recordkeeping requirements under the Truth in Lending Act, 

and Regulation Z, shall constitute compliance with §310.5(a)(3) of this Rule. 

16 CFR Ch. I (1-1-21 Edition) 

telephone number, and the job title(s) 

for all current and former employees 

directly involved in telephone sales or 

solicitations; provided, however, that if 

the seller or telemarketer permits fictitious names to be used by employees, 

each fictitious name must be traceable 

to only one specific employee; and 

(5) All verifiable authorizations or 

records of express informed consent or 

express agreement required to be provided or received under this Rule. 

(b) A seller or telemarketer may 

keep the records required by §310.5(a) 

in any form, and in the same manner, 

format, or place as they keep such 

records in the ordinary course of business. Failure to keep all records re- quired by §310.5(a) shall be a violation 

of this Rule. 

(c) The seller and the telemarketer 

calling on behalf of the seller may, by 

written agreement, allocate responsibility between themselves for the rec- ordkeeping required by this Section. 

When a seller and telemarketer have 

entered into such an agreement, the 

terms of that agreement shall govern, 

and the seller or telemarketer, as the case may be, need not keep records 

that duplicate those of the other. If the 

agreement is unclear as to who must 

maintain any required record(s), or if 

no such agreement exists, the seller 

shall be responsible for complying with 

§§ 310.5(a)(l)-(3) and (5); the telemarketer shall be responsible for com- plying with §310.5(a)(4). 

(d) In the event of any dissolution or 

termination of the seller's or telemarketer's business, the principal of 

that seller or telemarketer shall maintain all records as required under this 

section. In the event of any sale, assignment, or other change in ownership 

of the seller's or telemarketer's business, the successor business shall maintain all records required under this section. 

§ 310.6 Exemptions. 

(a) Solicitations to induce charitable 

contributions via outbound telephone 

calls are not covered by 

§ 310.4(b)(l)(iii)(B) of this Rule. 

(b) The following acts or practices are exempt from this Rule: 

396
Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36654 Page 33 of 47

Federal Trade Commission 

(1) The sale of pay-per-call services 

subject to the Commission's Rule entitled "Trade Regulation Rule Pursuant 

to the Telephone Disclosure and Dispute Resolution Act of 1992," 16 CFR 

part 308, provided, however, that this 

exemption does not apply to the re- quirements of §§310.4(a)(l), (a)(7), (b), 

and (c); 

(2) The sale of franchises subject to 

the Commission's Rule entitled "Disclosure Requirements and Prohibitions 

Concerning Franchising,'' (''Franchise 

Rule") 16 CFR part 436, and the sale of 

business opportunities subject to the 

Commission's Rule entitled "Disclosure Requirements and Prohibitions 

Concerning Business Opportunities,'' 

("Business Opportunity Rule") 16 CFR 

part 437, provided, however, that this 

exemption does not apply to the re- quirements of §§310.4(a)(l), (a)(7), (b), 

and (c); 

(3) Telephone calls in which the sale 

of goods or services or charitable solicitation is not completed, and payment or authorization of payment is not required, until after a face-to-face sales or donation presentation by the seller 

or charitable organization, provided, 

however, that this exemption does not 

apply to the requirements of 

§§ 310.4(a)(l), (a)(7), (b), and (c); 

(4) Telephone calls initiated by a customer or donor that are not the result 

of any solicitation by a seller, charitable organization, or telemarketer, 

provided, however, that this exemption 

does not apply to any instances of 

upselling included in such telephone 

calls; 

(5) Telephone calls initiated by a customer or donor in response to an advertisement through any medium, other 

than direct mail solicitation, provided, 

however, that this exemption does not 

apply to: 

(i) Calls initiated by a customer or 

donor in response to an advertisement 

relating to investment opportunities, 

debt relief services, business opportunities other than business arrangements 

covered by the Franchise Rule or Business Opportunity Rule, or advertisements involving offers for goods or 

services described in §310.3(a)(l)(vi) or §310.4(a)(2) through (4); 

(ii) The requirements of § 310.4(a)(9) 

or (10); or 

§310.7 

(iii) Any instances of upselling included in such telephone calls; 

(6) Telephone calls initiated by a cus- tomer or donor in response to a direct 

mail solicitation, including solicitations via the U.S. Postal Service, facsimile transmission, electronic mail, 

and other similar methods of delivery 

in which a solicitation is directed to 

specific address(es) or person(s), that 

clearly, conspicuously, and truthfully 

discloses all material information listed in §310.3(a)(l), for any goods or services offered in the direct mail solicitation, and that contains no material 

misrepresentation regarding any item 

contained in §310.3(d) for any requested 

charitable contribution; provided, however, that this exemption does not 

apply to: 

(i) Calls initiated by a customer in 

response to a direct mail solicitation 

relating to prize promotions, investment opportunities, debt relief serv- ices, business opportunities other than 

business arrangements covered by the 

Franchise Rule or Business Opportunity Rule, or goods or services described in § 310.3(a)(l)(vi) or § 310.4(a)(2) 

through (4); 

(ii) The requirements of § 310.4(a)(9) or (10); or (iii) Any instances of upselling included in such telephone calls; and 

(7) Telephone calls between a telemarketer and any business to induce 

the purchase of goods or services or a charitable contribution by the business, except calls to induce the retail 

sale of nondurable office or cleaning 

supplies; provided, however, that 

§§ 310.4(b)(l)(iii)(B) and 310.5 shall not 

apply to sellers or telemarketers of 

nondurable office or cleaning supplies. 

[75 FR 48516, Aug. 10, 2010, as amended at 80 

FR 77559, Dec. 14, 2015] 

§ 310. 7 Actions by states and private 

persons. 

(a) Any attorney general or other officer of a state authorized by the state 

to bring an action under the Telemarketing and Consumer Fraud and 

Abuse Prevention Act, and any private 

person who brings an action under that 

Act, shall serve written notice of its 

action on the Commission, if feasible, 

prior to its initiating an action under 

this Rule. The notice shall be sent to 

397 
Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36655 Page 34 of 47

§310.8 

the Office of the Director, Bureau of 

Consumer Protection, Federal Trade 

Commission, Washington, DC 20580, and 

shall include a copy of the state's or 

private person's complaint and any 

other pleadings to be filed with the 

court. If prior notice is not feasible, 

the state or private person shall serve 

the Commission with the required notice immediately upon instituting its 

action. 

(b) Nothing contained in this Section 

shall prohibit any attorney general or 

other authorized state official from 

proceeding in state court on the basis 

of an alleged violation of any civil or 

criminal statute of such state. 

§ 310.8 Fee for access to the National 

Do Not Call Registry. 

(a) It is a violation of this Rule for 

any seller to initiate, or cause any 

telemarketer to initiate, an outbound 

telephone call to any person whose 

telephone number is within a given 

area code unless such seller, either directly or through another person, first 

has paid the annual fee, required by 

§310.B(c), for access to telephone numbers within that area code that are included in the National Do Not Call 

Registry maintained by the Commission under § 310.4(b)(l)(iii)(B); provided, 

however, that such payment is not necessary if the seller initiates, or causes 

a telemarketer to initiate, calls solely 

to persons pursuant to 

§§ 310.4(b )(l)(iii)(B)(i) or (ii), and the 

seller does not access the National Do 

Not Call Registry for any other purpose. 

(b) It is a violation of this Rule for 

any telemarketer, on behalf of any seller, to initiate an outbound telephone 

call to any person whose telephone 

number is within a given area code unless that seller, either directly or 

through another person, first has paid 

the annual fee, required by §310.B(c), 

for access to the telephone numbers 

within that area code that are included 

in the National Do Not Call Registry; 

provided, however, that such payment 

is not necessary if the seller initiates, 

or causes a telemarketer to initiate, 

calls solely to persons pursuant to 

§§ 310.4(b)(l)(iii)(B)(i) or (ii), and the 

seller does not access the National Do 

16 CFR Ch. I (1-1-21 Edition) 

Not Call Registry for any other purpose. 

(c) The annual fee, which must be 

paid by any person prior to obtaining 

access to the National Do Not Call 

Registry, is $66 for each area code of 

data accessed, up to a maximum of 

$18,044; provided, however, that there 

shall be no charge to any person for accessing the first five area codes of data, 

and provided further, that there shall be no charge to any person engaging in or 

causing others to engage in outbound 

telephone calls to consumers and who 

is accessing area codes of data in the 

National Do Not Call Registry if the 

person is permitted to access, but is 

not required to access, the National Do 

Not Call Registry under this Rule, 47 

CFR 64.1200, or any other Federal regulation or law. No person may participate in any arrangement to share the 

cost of accessing the National Do Not 

Call Registry, including any arrangement with any telemarketer or service 

provider to divide the costs to access the registry among various clients of 

that telemarketer or service provider. 

(d) Each person who pays, either directly or through another person, the 

annual fee set forth in paragraph (c) of 

this section, each person excepted 

under paragraph (c) from paying the 

annual fee, and each person excepted 

from paying an annual fee under 

§ 310.4(b)(l)(iii)(B), will be provided a 

unique account number that will allow 

that person to access the registry data 

for the selected area codes at any time 

for the twelve month period beginning 

on the first day of the month in which 

the person paid the fee ("the annual period"). To obtain access to additional 

area codes of data during the first six 

months of the annual period, each person required to pay the fee under paragraph (c) of this section must first pay 

$66 for each additional area code of 

data not initially selected. To obtain 

access to additional area codes of data 

during the second six months of the annual period, each person required to 

pay the fee under paragraph (c) of this 

section must first pay $33 for each additional area code of data not initially 

selected. The payment of the additional fee will permit the person to access the additional area codes of data 

for the remainder of the annual period. 

398 
Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36656 Page 35 of 47

Federal Trade Commission 

(e) Access to the National Do Not 

Call Registry is limited to telemarketers, sellers, others engaged in or causing others to engage in telephone 

calls to consumers, service providers 

acting on behalf of such persons, and 

any government agency that has law 

enforcement authority. Prior to access- ing the National Do Not Call Registry, a person must provide the identifying 

information required by the operator of 

the registry to collect the fee, and 

must certify, under penalty of law, 

that the person is accessing the registry solely to comply with the provisions of this Rule or to otherwise prevent telephone calls to telephone num- bers on the registry. If the person is ac- cessing the registry on behalf of sellers, that person also must identify 

each of the sellers on whose behalf it is 

accessing the registry, must provide 

each seller's unique account number 

for access to the national registry, and 

must certify, under penalty of law, 

that the sellers will be using the information gathered from the registry 

solely to comply with the provisions of 

this Rule or otherwise to prevent telephone calls to telephone numbers on the registry. 

[75 FR 48516, Aug. 10, 2010; 75 FR 51934, Aug. 

24, 2010, as amended at 77 FR 51697, Aug. 27, 

2012; 78 FR 53643, Aug. 30, 2013; 79 FR 51478, 

Aug. 29, 2014; 80 FR 77560, Dec. 14, 2016; 81 FR 

59845, Aug. 31, 2016; 82 FR 39534, Aug. 21, 2017; 

83 FR 46640, Sept. 14, 2018; 84 FR 44687, Aug. 

27, 2019; 85 FR 62597, Oct. 5, 2020] 

§ 310.9 Severability. 

The provisions of this Rule are separate and severable from one another. If 

any provision is stayed or determined 

to be invalid, it is the Commission's intention that the remaining provisions 

shall continue in effect. 

PART 311-TEST PROCEDURES AND 

LABELING STANDARDS FOR RECYCLED OIL 

l Sec. 

311.1 Definitions. 

311.2 Stayed or invalid parts. 

311.3 Preemption. 

311.4 Testing. 

311.5 Labeling. 

311.6 Prohibited acts. 

AUTHORITY: 42 U.S.C. 6363(d). 

399

§311.3 

SOURCE: 60 FR 55421, Oct. 31, 1995, unless 

therwise noted. 

311.1 Definitions. 

As used in this part: 

(a) Manufacturer means any person 

ho re-refines or otherwise processes 

sed oil to remove physical or chemcal impurities acquired through use or ho blends such re-refined or otherwise 

rocessed used oil with new oil or addiives. 

(b) New oil means any synthetic oil or 

il that has been refined from crude oil 

nd which has not been used and may 

r may not contain additives. Such erm does not include used oil or recyled oil. 

(c) Processed used oil means re-refined 

r otherwise processed used oil or blend 

f oil, consisting of such re-refined or therwise processed used oil and new 

il or additives. 

(d) Recycled oil means processed used 

il that the manufacturer has deterined, pursuant to section 311.4 of this 

art, is substantially equivalent to new il for use as engine oil. 

(e) Used oil means any synthetic oil 

r oil that has been refined from crude 

il, which has been used and, as a re- ult of such use, has been contamiated by physical or chemical impuriies. 

(f) Re-refined oil means used oil from 

hich physical and chemical contamiants acquired through use have been 

emoved. 

311.2 Stayed or invalid parts. 

If any part of this rule is stayed or eld invalid, the rest of it will remain 

n force. 

311.3 Preemption. 

No law, regulation, or order of any 

tate or political subdivision thereof 

ay apply, or remain applicable, to 

ny container of recycled oil, if such 

aw, regulation, or order requires any 

ontainer of recycled oil, which con- ainer bears a label in accordance with 

he terms of §311.5 of this part, to bear 

ny label with respect to the comparaive characteristics of such recycled oil 

ith new oil that is not identical to 

hat permitted by §311.5 of this part. 

o

§

w

u

i

w

p

t

o

a

o

t

c

o

o

o

o

o

m

p

o

o

o

s

n

t

w

n

r

§

h

i

§

S

m

a

c

t

t

a

t

w

t
ATTACHMENT B 

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36657 Page 36 of 47
Utah Code Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36658 Page 37 of 47

Chapter 26 

Telephone Fraud Prevention Act 

13-26-1 Short title. 

This chapter is known as the "Telephone Fraud Prevention Act." 

Enacted by Chapter 154, 1990 General Session 

13-26-2 Definitions. 

As used in this chapter, unless the context otherwise requires: 

(1) "Affiliated person" means a seller or a seller's contractor, director, employee, officer, owner, or 

partner. 

(2) "Continuity plan" means a shipment, with the prior express consent of the buyer, at regular 

intervals of similar special-interest products, in which there is no binding commitment period or 

purchase amount. 

(3) "Division" means the Division of Consumer Protection. 

(4) "Fictitious personal name" means a name other than an individual's legal name. 

(5) "Material statement" or "material fact" means information that a person of ordinary intelligence 

or prudence would consider important in deciding whether to accept an offer extended through 

a telephone solicitation. 

(6) "Participant" means a person seeking to register or renew a registration as a seller including: 

(a) a seller; 

(b) an owner; 

(c) an officer; 

(d) a director; 

(e) a member or manager of a limited liability company; 

(f) a principal; 

(g) a trustee; 

(h) a general or limited partner; 

(i) a sole proprietor; or 

U) an individual with a controlling interest in an entity. 

(7) "Premium" means a gift, bonus, prize, award, certificate, or other document by which a 

prospective purchaser is given a right, chance, or privilege to purchase or receive goods or 

services with a stated or represented value of $25 or more as an inducement to a prospective 

purchaser to purchase other goods or services. 

(8) "Seller" means a person, or a group of persons engaged in a common effort to conduct a 

telephone solicitation, that: 

(a) on behalf of the person, or the group of persons engaged in a common effort to conduct a 

telephone solicitation: 

(i) makes a telephone solicitation; or 

(ii) causes a telephone solicitation to be made; or 

(b) through a telephone solicitor: 

(i) makes a telephone solicitation; or 

(ii) causes a telephone solicitation to be made. 

(9) "Subscription arrangements," "standing order arrangements," "supplements," and "series 

arrangements" mean products or services provided, with the prior express request or consent 

Page 1 
Utah Code Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36659 Page 38 of 47

of the buyer, for a specified period of time at a price dependent on the duration of service and 

to complement an initial purchase. 

(10) 

(a) "Telephone solicitation," "sale," "selling," or "solicitation of sale" means: 

(i) a sale or solicitation of goods or services in which: 

(A) 

(I) the seller solicits the sale over the telephone; 

(II) the purchaser's agreement to purchase is made over the telephone; and 

(Ill) the purchaser, over the telephone, pays for or agrees to commit to payment for goods or 

services prior to or upon receipt by the purchaser of the goods or services; 

(B) the seller, not exempt under Section 13-26-4, induces a prospective purchaser over 

the telephone, to make and keep an appointment that directly results in the purchase of 

goods or services by the purchaser that would not have occurred without the telephone 

solicitation and inducement by the seller; 

(C) the seller offers or promises a premium to a prospective purchaser if: 

(I) the seller induces the prospective purchaser to initiate a telephone contact with the seller; 

and 

(II) the resulting solicitation meets the requirements of Subsection (1 0)(a); or 

(D) the seller solicits a charitable donation involving the exchange of any premium, prize, gift, 

ticket, subscription, or other benefit in connection with an appeal made for a charitable 

purpose by an organization that is not otherwise exempt under Subsection 13-26-4(2)(b) 

(iv); or 

(ii) a telephone solicitation as defined in Section 13-25a-102. 

(b) "Telephone solicitation," "sale," "selling," or "solicitation of sale" does not include a sale or 

solicitation that occurs solely through an Internet website without the use of a telephone call. 

(c) A solicitation of sale or telephone solicitation is considered complete when made, whether or 

not the person receiving the solicitation agrees to the sale or to make a charitable donation. 

(11) "Telephone solicitor" or "solicitor" means an individual who engages in a telephone solicitation 

on behalf of a seller. 

Amended by Chapter 324, 2022 General Session 

13-26-3 Registration and bond required. 

(1) 

(a) Unless exempt under Section 13-26-4, each seller shall register annually with the division 

before engaging in telephone solicitations if: 

(i) the seller engages in telephone solicitations that: 

(A) originate in Utah; or 

(B) are received in Utah; or 

(ii) the seller, or a solicitor on behalf of the seller, conducts any business operations in Utah. 

(b) The registration form shall designate an agent residing in this state who is authorized by the 

seller to receive service of process in any action brought by this state or a resident of this 

state. 

(c) If a seller fails to designate an agent to receive service or fails to appoint a successor to the 

agent, the division shall: 

(i) deny the seller's application for an initial or renewal registration; and 

(ii) if the application is for a renewal registration, suspend the seller's current registration until 

the seller designates an agent. 

Page2 
Utah Code Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36660 Page 39 of 47

(d) For purposes of this section only, the registered agent of a seller shall provide the division the 

registered agent's proof of residency in the state in the form of: 

(i) a valid Utah driver license; 

(ii) a valid governmental photo identification issued to a resident of this state; or 

(iii) other verifiable identification indicating residency in this state. 

(2) The division may impose an annual registration fee set in accordance with Section 63J-1-504 

that may include the cost of the criminal background check described in Subsection (4). 

(3) 

(a) Each seller subject to this chapter engaging in telephone solicitation or sales in this state shall 

obtain and maintain the following security: 

(i) a performance bond issued by a surety authorized to transact surety business in this state; 

(ii) an irrevocable letter of credit issued by a financial institution authorized under the laws of 

this state or the United States doing business in this state; or 

(iii) a certificate of deposit held in this state in a financial institution authorized under the laws of 

this state or the United States to accept deposits from the public. 

(b) A seller's bond, letter of credit, or certificate of deposit shall be payable to the division for 

the benefit of any consumer who incurs damages as the result of the seller's violation of this 

chapter. 

(c) If the consumer has first recovered full damages, the division may recover from the bond, 

letter of credit, or certificate of deposit administrative fines, civil penalties, investigative costs, 

attorney fees, and other costs of collecting and distributing funds under this section. 

(d) A seller shall keep a bond, certificate of deposit, or letter of credit in force for one year 

after the day on which the seller notifies the division in writing that the seller has ceased all 

activities regulated by this chapter. 

(e) The seller shall post a bond, irrevocable letter of credit, or certificate of deposit in the amount 

of: 

(i) $25,000 if: 

(A) neither the seller nor any affiliated person has violated this chapter in the three-year 

period immediately before the day on which the seller files the application; and 

(B) the seller has fewer than 10 employees; 

(ii) $50,000 if: 

(A) neither the seller nor any affiliated person has violated this chapter in the three-year 

period immediately before the day on which the seller files the application; and 

(B) the seller has 1 0 or more employees; or 

(iii) $75,000 if the seller or any affiliated person has violated this chapter in the three-year 

period immediately before the day on which the seller files the application. 

(4) To register or renew a registration as a seller, a participant: 

(a) may not have been convicted of a felony in the 10-year period immediately before the day on 

which the participant files the application; 

(b) may not have been convicted of a misdemeanor involving moral turpitude, including 

theft, fraud, or dishonesty, in the 10-year period immediately before the day on which the 

participant files the application; and 

(c) shall submit to the division: 

(i) the participant's fingerprints, in a form acceptable to the division, for purposes of a criminal 

background check; and 

(ii) consent to a criminal background check by the Bureau of Criminal Identification created in 

Section 53-1 0-201 . 

Page3 
Utah Code Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36661 Page 40 of 47

(5) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division may 

establish by rule the registration requirements for a seller. 

(6) If information in an application for registration or for renewal of registration as a seller materially 

changes or becomes incorrect or incomplete, the applicant shall, within 30 days after the 

day on which information changes or becomes incorrect or incomplete, submit the correct 

information to the division in a manner that the division establishes by rule. 

(7) The division director may deny or revoke a registration under this section for any violation of 

this chapter. 

Amended by Chapter 324, 2022 General Session 

13-26-4 Exemptions from registration. 

(1) In an enforcement action initiated by the division, a person claiming an exemption has the 

burden of proving that the person is entitled to the exemption. 

(2) The following are exempt from this chapter except for the requirements described in Sections 

13-26-8 and 13-26-11 : 

(a) a broker, agent, dealer, or sales professional licensed in this state, when soliciting sales 

within the scope of the broker's, agent's, dealer's, or sales professional's license; 

(b) the solicitation of sales by: 

(i) a public utility that is regulated under Title 54, Public Utilities, or by an affiliate of the public 

utility; 

(ii) a newspaper of general circulation; 

(iii) a solicitation of sale made by a broadcaster licensed by a state or federal authority; 

(iv) a nonprofit organization if no part of the net earnings from the sale inures to the benefit of: 

(A) a member, officer, trustee, or serving board member of the organization; or 

(B) an individual, or a family member of an individual, holding a position of authority or trust in 

the organization; and 

(v) a person who periodically publishes and delivers a catalog of the seller's merchandise to 

prospective purchasers, if the catalog: 

(A) contains the price and a written description or illustration of each item offered for sale; 

(B) includes the seller's business address; 

(C) includes at least 24 pages of written material and illustrations; 

(D) is distributed in more than one state; and 

(E) has an annual circulation by mailing of not less than 250,000; 

(c) a publicly traded corporation registered with the Securities and Exchange Commission, or a 

subsidiary of the publicly traded corporation; 

(d) the solicitation of a depository institution as defined in Section 7-1-103, a subsidiary of 

a depository institution, personal property broker, securities broker, investment adviser, 

consumer finance lender, or insurer subject to regulation by an official agency of this state or 

the United States; 

(e) the solicitation by a person soliciting only the sale of telephone services to be provided by the 

person or the person's employer; 

(f) the solicitation of a person relating to a transaction regulated by the Commodities Futures 

Trading Commission, if: 

(i) the person is registered with or temporarily licensed by the commission to conduct the 

activity under the Commodity Exchange Act; and 

(ii) the registration or license has not expired or been suspended or revoked; 

Page4 
Utah Code Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36662 Page 41 of 47

(g) the solicitation of a contract for the maintenance or repair of goods previously purchased from 

the person: 

(i) who is making the solicitation; or 

(ii) on whose behalf the solicitation is made; 

(h) the solicitation of previous customers of the person on whose behalf the call is made if the 

person making the call: 

(i) does not offer any premium in conjunction with a sale or offer; 

(ii) is not selling an investment or an opportunity for an investment that is not registered with a 

state or federal authority; and 

(iii) is not regularly engaged in telephone sales; 

(i) the solicitation of a sale that is an isolated transaction and not done in the course of a pattern 

of repeated transactions of a similar nature; 

U) the solicitation of a person by a retail business that has been in operation for at least five years 

in Utah under the same name as that used in connection with telemarketing if the following 

occur on a continuing basis: 

(i) at the retail business's place of business, the retail business: 

(A) displays and offers products for sale; or 

(B) offers services for sale and provides the services at the place of business; and 

(ii) a majority of the retail business's business involves the activities described in Subsection (2) 

U)(i); 

(k) a person primarily soliciting the sale of a magazine or periodical sold by the publisher or the 

publisher's agent through a written agreement, or printed or recorded material through a 

contractual plan, such as a book or record club, continuity plan, subscription, standing order 

arrangement, or supplement or series arrangement if: 

(i) the person provides the consumer with a form that the consumer may use to instruct the 

person not to ship the offered merchandise, and the arrangement is regulated by the 

Federal Trade Commission trade regulation concerning use of negative option plans by a 

person making a sale in commerce; or 

(ii) 

(A) the person periodically ships merchandise to a consumer who has consented in advance 

to receive the merchandise on a periodic basis; and 

(B) the consumer retains the right to cancel at any time and receive a full refund for the 

unused portion; 

(I) a telephone marketing service company that provides telemarketing sales services under 

contract to a person making a sale if: 

(i) the telephone marketing service company has been doing business regularly with customers 

in Utah for at least five years under the same business name and with the telephone 

marketing service company's principal office in the same location; 

(ii) at least 75% of the telephone marketing service company's contracts are performed on 

behalf of persons exempt from registration under this chapter; and 

(iii) neither the telephone marketing service company nor the telephone marketing service 

company's principals have been enjoined from doing business or subjected to criminal 

actions for the telephone marketing service company's or the telephone marketing 

company's principal's business activities in this or any other state; 

(m) a credit services organization that holds a current registration with the division under 

Chapter 21, Credit Services Organizations Act, if the credit services organization's telephone 

solicitations are limited to the solicitation of services regulated under Chapter 21, Credit 

Services Organizations Act; and 

Page5 
Utah Code Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36663 Page 42 of 47

(n) a provider that holds a current registration with the division under Chapter 42, Uniform 

Debt-Management Services Act, if the provider's telephone solicitations are limited to the 

solicitation of services regulated under Chapter 42, Uniform Debt-Management Services Act. 

Amended by Chapter 324, 2022 General Session 

13-26-5 Right of rescission -- Cancellation. 

(1) As used in this section, "business day" means a day other than Sunday or a federal or state 

holiday. 

(2) 

(a) Except as provided in Subsections (2)(b) and (c), in addition to any right to otherwise revoke 

an offer, a person who makes a purchase from a seller may cancel the sale before midnight 

of the third business day after the day on which the person receives the merchandise or 

premium, whichever is later, provided the seller or the seller's solicitor advises the purchaser 

of the purchaser's cancellation rights under this chapter at the time the solicitation is made. 

(b) If the seller or the seller's solicitor fails to orally advise a purchaser of the right to cancel under 

this section at the time of a solicitation, the purchaser's right to cancel is extended to 90 days. 

(c) If the seller or the seller's solicitor fails to orally advise a purchaser of the seller's or the 

seller's solicitor's legal name, telephone number, and complete address at the time of a 

solicitation, the purchaser may cancel the sale at any time. 

(d) Except as provided in Subsection (5), a seller shall provide a full refund to a purchaser who 

cancels a sale in accordance with this section. 

(3) A purchaser may cancel a sale by: 

(a) mailing a notice of cancellation to the seller or seller's solicitor's correct address, postage 

prepaid; or 

(b) if the seller or the seller's solicitor fails to provide the purchaser with the seller's or the seller's 

solicitor's correct address, sending a notice of cancellation to the division's office, postage 

prepaid. 

(4) 

(a) If a purchaser cancels a sale and the seller or the seller's solicitor provides the purchaser with 

the seller's correct address, the purchaser shall, within seven business days after the day on 

which the purchaser exercises the right to cancel, make a reasonable attempt to: 

(i) if the canceled sale involves durable goods, return the goods to the seller; or 

(ii) if the canceled sale involves expendable goods, return any unused portion of the goods to 

the seller. 

(b) If the seller or the seller's solicitor fails to provide to a purchaser the seller's correct address, a 

purchaser who cancels a sale is not required to return any canceled goods to the seller. 

(5) 

(a) If the purchaser who cancels a sale has used any portion of the services or goods purchased, 

the purchaser shall provide the seller a reasonable allowance for the value given. 

(b) A seller may deduct the reasonable allowance described in Subsection (5)(a) from any refund 

due the purchaser. 

Amended by Chapter 324, 2022 General Session 

13-26-8 Penalties. 

(1) 

(a) A seller or solicitor who violates a provision of this chapter is guilty of: 

Page6 
Utah Code Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36664 Page 43 of 47

(i) a class B misdemeanor for a first violation; 

(ii) if the seller or solicitor has one prior violation of this chapter, a class A misdemeanor; and 

(iii) if the seller or solicitor has two prior violations of this chapter, a third-degree felony. 

(b) For the purposes of Subsection (1 )(a), a prior violation includes: 

(i) a final prior conviction; 

(ii) a final determination by a court of competent jurisdiction; or 

(iii) a final determination in an administrative adjudicative proceeding. 

(2) A person who violates a provision of this chapter is subject to a civil penalty in a court of 

competent jurisdiction of up to $2,500 for each violation of this chapter. 

(3) 

(a) The division may: 

(i) in accordance with Title 63G, Chapter 4, Administrative Procedures Act, conduct an 

administrative proceeding to enforce the provisions of this chapter; 

(ii) bring a court action to enforce the provisions of this chapter; and 

(iii) in addition to other penalties described in this chapter, issue a cease and desist order and 

impose an administrative fine of up to $2,500 for each violation of this chapter. 

(b) For purposes of this section, each telephone solicitation made in violation of this chapter is a 

separate violation. 

(4) The division shall deposit all administrative fines and civil penalties collected under this chapter 

into the Consumer Protection Education and Training Fund created in Section 13-2-8. 

Amended by Chapter 324, 2022 General Session 

13-26-10 Provisions of chapter not exclusive. 

The remedies, duties, prohibitions, and penalties of this chapter are not exclusive and are in 

addition to all other causes of action, remedies, and penalties provided by law. 

Enacted by Chapter 184, 1991 General Session 

13-26-11 Prohibited practices. 

(1) It is unlawful for a seller to: 

(a) solicit a prospective purchaser if the seller is not registered with the division or exempt from 

registration under this chapter; 

(b) in connection with a telephone solicitation or a filing with the division, make or cause to be 

made a false material statement or fail to disclose a material fact necessary to make the 

seller's statement not misleading; 

(c) make or authorize the making of a misrepresentation to a purchaser or prospective purchaser 

about the seller's compliance with this chapter; 

(d) fail to refund within 30 days any amount due a purchaser who exercises the right to cancel 

under Section 13-26-5; 

(e) unless the seller is exempt under Section 13-26-4, fail to orally advise a purchaser of the 

purchaser's right to cancel under Section 13-26-5; 

(f) employ an inmate in a correctional facility for telephone soliciting operations when the 

employment would give the inmate access to an individual's personal data, including 

the individual's name, address, telephone number, Social Security number, credit card 

information, or physical description; or 

(g) cause or permit a solicitor to violate a provision of this chapter. 

(2) It is unlawful for a solicitor to: 

Page 7 
Utah Code Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36665 Page 44 of 47

(a) use a fictitious personal name in connection with a telephone solicitation; 

(b) in connection with a telephone solicitation, make or cause to be made a false material 

statement or fail to disclose a material fact necessary to make the solicitor's statement not 

misleading; 

(c) make a misrepresentation to a purchaser or prospective purchaser about the solicitor's 

compliance with this chapter; or 

(d) unless the solicitor is exempt under Section 13-26-4, fail to orally advise a purchaser of the 

purchaser's right to cancel under Section 13-26-5. 

(3) If a person knows or has reason to know that a seller or solicitor is engaged in an act or 

practice that violates this chapter, it is unlawful for the person to: 

(a) benefit from the seller's or solicitor's services; or 

(b) provide substantial assistance or support to the seller or solicitor. 

Amended by Chapter 324, 2022 General Session 

13-26-12 Consumer complaints are public. 

(1) As used in this section, "consumer complaint" means a complaint that: 

(a) a person files with the division; 

(b) alleges facts relating to conduct that the division regulates under this chapter; and 

(c) 

(i) alleges a loss to the person described in Subsection (1 )(a) of $3,500 or more; or 

(ii) is one of at least 50 complaints filed with the division: 

(A) against the same person; and 

(B) during the four-year period immediately before the day on which the person described in 

Subsection (1 )(a) files the complaint. 

(2) For purposes of determining the number of complaints against the same person under 

Subsection (1 )(c)(ii)(A), the division may consider complaints filed against multiple corporations, 

limited liability companies, partnerships, or other business entities under common ownership to 

be complaints against the same person. 

(3) Notwithstanding Subsection 13-11-7(2) and subject to Subsections (4) and (5), a consumer 

complaint: 

(a) is a public record; and 

(b) may not be classified as a private, controlled, or protected record under Title 63G, Chapter 2, 

Government Records Access and Management Act. 

(4) Subsection (3) does not apply to a consumer complaint: 

(a) that is nonmeritorious, beginning the day on which: 

(i) the division determines through an administrative proceeding that the consumer complaint is 

nonmeritorious; or 

(ii) a court of competent jurisdiction finds the consumer complaint non meritorious; or 

(b) that is on file with the division for more than four years after the day on which the person files 

the consumer complaint. 

(5) Before making a consumer complaint that is subject to Subsection (3) or a response described 

in Subsection (6) available to the public, the division: 

(a) shall redact from the consumer complaint or response any information that would disclose: 

(i) the filer's: 

(A) address; 

(B) Social Security number; 

(C) bank account information; 

Page8 
Utah Code Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36666 Page 45 of 47

(D) email address; or 

(E) telephone number; or 

(ii) information similar in nature to the information described in Subsection (5)(a)(i); and 

(b) may redact the name of the filer and any other information that could, in the division's 

judgment, disclose the identity of the filer filing the consumer complaint. 

(6) A person's initial, written response to a consumer complaint that is subject to Subsection (3) is 

a public record. 

Amended by Chapter 324, 2022 General Session 

Page9 
ATTACHMENT C 

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36667 Page 46 of 47
COLLATERAL 

The Deferred Payments identified in Sections IV.C.2-4 of the Stipulated Order for 

Permanent Injunction, Monetary Judgment, and Other Relief as to Defendants Nudge, LLC; 

Response Marketing Group, LLC; BuyPD, LLC; Brandon B. Lewis; Ryan C. Poelman; Phillip 

W. Smith; Shawn L. Finnegan; and Clint R. Sanderson shall be secured by a second lien on the

real property, leases, and future rents owned by Building One Lindon, LLC, located at the 

address commonly referred to as 380 S Technology Court, Lindon, Utah 84042. This property is 

also known as Parcel Number 45-417-0018. 

Case 2:19-cv-00867-DBB Document 512 Filed 05/18/23 PageID.36668 Page 47 of 47