IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

FEDERAL TRADE COMMISSION, 

Plaintiff, 

V. 

DAY PACER LLC, f/k/a College Criteria 

LLC, also d/b/a Edutrek, EdSoup, Our School 

Search, College Info and Degree Spots and 

successor in interest to EduTrek L.L.C., a 

limited liability company; 

EDUTREK L.L.C., also d/b/a EdSoup, a 

dissolved limited liability company; 

RAYMOND FITZGERALD, individually 

and as an officer of Day Pacer LLC and 

EduTrek L.L.C.; 

IAN FITZGERALD, individually and as an 

officer of Day Pacer LLC; and 

DA YID CUMMING, individually and as an 

officer of Day Pacer LLC and Edu Trek 

L.L.C.; 

Defendants. 

1: 19-cv-01984 

Judge Edmond E. Chang 

Magistrate Judge Mary M. Rowland 

RECEIVED 

MAR 22 2019 

THOMAS G. BRUTON 

CLERK, U.S. DISTRICT COURT 

COMPLAINT FOR CIVIL-PENALTIES, PERMANENT INJUNCTION, AND OTHER 

RELIEF 

1. Plaintiff, the Federal Trade Commission ("FTC" or "Commission"), brings this 

action under Sections 5(a), 5(m)(l)(A), 13(b), 16(a), and 19 of the FTC Act, 15 U.S.C. §§ 45(a), 

45(m)(l)(A), 53(b), and 57(b), and Section 6 of the Telemarketing and Consumer Fraud and 

Abuse Prevention Act (the "Telemarketing Act"), 15 U.S.C. § 6105, to obtain monetary civil 

COMPLAINT 
penalties, a permanent injunction, and other relief for Defendants' violations of Section 5( a) of 

the FTC Act, 15 U.S.C. § 45(a), and the FTC's Telemarketing Sales Rule (the "TSR" or "Rule"), 

as amended, 16 C.F.R. Part 310. 

JURISDICTION AND VENUE 

2. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 

§§ 1331, 1337(a), 1345, and 1355, and 15 U.S.C. §§ 45(m)(l)(A), 53(b), and 56(a). This action 

arises under 15 U.S.C. § 45(a). 

3. Venue is proper in this District under 28 U.S.C. §§ 1391(b)(2), (c)(2), and 

1395(a), and 15 U.S.C. § 53(b). 

PLAINTIFF 

4. The FTC is an independent agency of the United States Government created by 

statute. 15 U.S.C. §§ 41-58. The FTC enforces Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), 

which prohibits unfair or deceptive acts or practices in or affecting commerce. The FTC also 

enforces the Telemarketing Act, 15 U.S.C. §§ 6101-6108 . Pursuant to the Telemarketing Act, the 

FTC promulgated and enforces the TSR, 16 C.F.R. Part 310, which prohibits deceptive and 

abusive telemarketing acts or practices. 

5. The FTC is authorized to initiate federal district court proceedings, by its own 

attorneys, to enjoin, iolation of the FTC Act and the TSR, and to secure such equitable relief as 

may be appropriate in each case, including rescission or reformation of contracts, restitution, the 

refund of monies paid, and the disgorgement of ill-gotten monies. 15 U.S.C §§ 53(b), 

56(a)(2)(A), 56(a)(2)(B), and 57b. The FTC is also authorized to obtain civil penalties for 

violations of the TSR. 15 U.S.C. § 45(m)(l)(A). 

COMPLAINT 

2 
DEFENDANTS 

6. Defendant Day Pacer LLC, previously known as College Criteria LLC also d/b/a 

Edutrek, EdSoup, Our School Search, College Info, and Degree Spots ("Day Pacer"), is a Utah 

limited liability company with its principal place of business at 1333 East 9400 South, Second 

Floor, Sandy, Utah 84093 . Day Pacer is a telemarketer that initiates outbound telephone calls on 

behalf of third parties to induce consumers to enroll in vocational training and post-secondary 

education programs, among other things. Day Pacer obtained the assets of Defendant EduTrek, 

L.L.C. and continued the operation as a continuation of Edu Trek L.L.C., de facto merger, or 

fraudulent conveyance to escape EduTrek L.L.C. 's liability. Day Pacer transacts or has 

transacted business in this district and throughout the United States. 

7. Defendant EduTrek L.L.C., also d/b/a EdSoup ("Edutrek"), is a dissolved Utah 

limited liability company with its principal place of business at 1333 East 9400 South, Second 

Floor, Sandy, Utah 84093. Edutrek is a telemarketer that initiates or initiated outbound 

telephone calls on behalf of third parties to induce consumers to enroll in vocational training and 

post-secondary education programs, among other things. Edutrek transacts or has transacted 

business in this district and throughout the United States. 

8. Day Pacer is a successor in interest to Edutrek. For example, the two companies 

had common ownership, managers, employees, business functions, and office locations. Day 

Pacer held itself out as a continuation of Edu trek. Defendants began the process of dissolving 

Edutrek and creating Day Pacer to continue Edutrek's business around the time Edutrek was 

named as a defendant in a class action complaint and received a communication from a vendor 

demanding information about Edutrek's compliance with federal telemarketing laws. 

COMPLAINT 

3 
9. Defendant Raymond Fitzgerald, individually and through his company Dalsnan 

Family LLC, owns a primary interest in Day Pacer and Edutrek (collectively, the "Corporate 

Defendants"). He is identified as a managing member, manager, and registered agent on 

corporate registration papers of Day Pacer and Edu trek. In connection with the matters alleged 

herein, Raymond Fitzgerald transacts or has transacted business in this District and throughout 

the United States. At all times material to this Complaint, acting alone or in concert with others, 

he has formulated, directed, controlled, had the authority to control, or participated in the acts 

and practices set forth in this complaint, including but not limited to formulating the Corporate 

Defendants' policies, responding to consumer complaints, obtaining leads, handling legal matters 

related to calls to telephone numbers on the National Do Not Call Registry, and taking personnel 

action. Through his direct participation in, and control over, the Corporate Defendants' 

enterprise, Raymond Fitzgerald has had knowledge of the acts and practices constituting the 

violations alleged herein. 

10. Defendant Ian Fitzgerald is the President of Day Pacer and owns a substantial 

interest in the company, individually and through his company Crystal Peak I, LLC. Ian 

Fitzgerald also was an authorized signatory on Edutrek's corporate bank account. In connection 

with the matters alleged herein, Ian Fitzgerald transacts or has transacted business in this District 

and throughout the United States. At all times material to this Complaint, acting alone or in 

concert with others, he has formulated, directed, controlled, had the authority to control, or 

participated in the acts and practices set forth in this complaint, including but not limited to 

buying and selling leads, addressing reports of noncompliance and legal violations by lead 

purchasers, and setting company policy for Day Pacer's call center. Through his direct 

COMPLAINT 

4 
participation in, and control over Day Pacer, Ian Fitzgerald has had knowledge of the acts and 

practices constituting the violations alleged herein. 

11. Defendant David Cumming owns a substantial interest in Day Pacer and Edutrek 

and is identified as a manager on the companies' corporate filings. In connection with the 

matters alleged herein, Cumming transacts or has transacted business in this District and 

throughout the United States. At all times material to this Complaint, acting alone or in concert 

with others, he has formulated, directed, controlled, had the authority to control, or participated 

in the acts and practices set forth in this complaint, including but not limited to directing the 

payment of funds by one Corporate Defendant to another Corporate Defendant and to 

contractors, and implementing Defendants' dialing, lead tracking, and compliance systems. 

Through his direct participation in, and control over, the Corporate Defendants' enterprise, 

Cumming has had knowledge of the acts and practices constituting the violations alleged herein. 

12. Defendants have placed outbound telephone calls to telephone numbers with area 

codes in this District and to consumers in this District, including calls to numbers listed on the 

National Do Not Call Registry. Defendants also promote and sell consumer leads to postsecondary and vocational schools located within this District. 

COMMERCE 

13. At all times material to this Complaint, Defendants have maintained a substantial 

course of trade in or affecting commerce, as "commerce" is defined in Section 4 of the FTC Act, 

15 U.S.C. § 44. 

COMMON ENTERPRISE 

14. Corporate Defendants have operated as a common enterprise while engaging in 

the unlawful acts and practices alleged below. Defendants have conducted the business practices 

COMPLAINT 

5 
described below through an interrelated network of companies that have common ownership, 

managers, employees, business functions, and office locations, including the Corporate 

Defendants and EdSoup.com L.L.C., a predecessor company to Edutrek. Because these 

Corporate Defendants have operated as a common enterprise, each of them is jointly and 

severally liable for the acts and practices alleged below. Defendants Raymond Fitzgerald, David 

Cumming, and Ian Fitzgerald have formulated, directed, controlled, had the authority to control, 

or participated in the acts and practices of the Corporate Defendants that constitute the common 

enterprise. Through their direct participation in, and control over, the common enterprise, they 

have had knowledge of the acts and practices constituting the violations alleged herein. 

DEFENDANTS' BUSINESS PRACTICES 

15. Defendants are telemarketers that call telephone numbers on the National Do Not 

Call Registry ("the Registry" or "the Do Not Call Registry") without consumers' consent. 

Defendants are paid by post-secondary and vocational schools to promote their programs and 

generate consumer leads. They do so by making unsolicited telephone calls to consumers who 

have submitted their contact information on websites that claim to help them apply for jobs, 

health insurance, unemployment benefits, Medicaid coverage, or other forms of public 

assistance. Defendants also pay other telemarketers ("Telemarketing Affiliates") to initiate such 

telephone calls and then transfer the calls to Defendants for further telemarketing. Instead of 

offering consumers what was promised on the websites - help in applying for jobs, health 

insurance, unemployment benefits, Medicaid coverage, or other forms of public assistance -

Defendants pitch training and education programs. Defendants and their Telemarketing 

Affiliates have called millions of consumers who had listed their numbers on the Registry. 

COMPLAINT 

6 
Defendants' Outbound Telemarketing Calls to Unsuspecting Consumers 

16. Defendants have initiated over five million outbound telephone calls to consumers 

whose telephone numbers are listed on the Registry. 

17. Defendants purchase telephone numbers from operators of websites that claim to 

help consumers apply for jobs, health insurance, unemployment benefits, Medicaid coverage, or 

other forms of public assistance ( collectively, 'job and benefits websites"). These websites 

direct consumers to complete an online form by entering their personal information, including 

their telephone numbers, purportedly to receive information on these subjects. But the websites 

then sell the information to Defendants who call the consumers to market post-secondary and 

vocational education products. 

18. The job and benefits websites use various tactics, including those described 

below, to hide the fact that consumers providing their information will receive calls from 

Defendants about post-secondary and vocational education products. 

19. First, in numerous instances, the job and benefits websites use fine, inconspicuous 

print to obtain consumers' purported consent to receive telemarketing calls. 

20. For example, Defendants obtain leads from the website depicted below, which 

prominently displays the headline "Jobs In Your Area" and claims that "Thousands of 

Government Jobs In Your Area Are Looking to Hire Immediately." Directly below these claims, 

an arrow directs consumers to enter their contact information and press a large button labeled 

"SUBMIT." Immediately below the button, the official seals of several federal government 

agencies appear, further reinforcing the impression that consumers could obtain information 

about "Thousands of Government Jobs" by entering their contact information. 

COMPLAINT 

7 
0 . rn 

Email Address Phone Number 

This website is not affil:ate:I with the United Stat~s Government 

·b, nYr- rAi-:?J co 'C,:,i- t,:.: 'J~ I ?n•:a.:v P~IICY 

21. Below the seals, however, is a block of small, pale gray text on a pale background 

that is illegible without substantial magnification. This text reads, "You certify that you are a us 

[sic] resident over the age of 18, and you agree to the terms and conditions and privacy policy." 

It then states that simply by clicking the "submit" button, ostensibly to request information about 

government jobs in the consumer's area, the consumer is "consent[ing]" to receive telemarketing 

calls about various subjects having nothing to do with obtaining a government job. 

22. Second, in numerous instances, the job and benefits websites require consumers 

to affirmatively opt out of receiving telemarketing calls, such as by clicking an opt-out link or 

COMPLAINT 

8 
unchecking a pre-populated checkbox. These links and checkboxes often are inconspicuous and 

written in fine print. 

23 . For example, the webpage below promises to help people apply for jobs, but 

consumers are automatically enrolled to receive calls from Defendants about education unless 

they notice and affirmatively opt out by unchecking a pre-checked box toward the bottom of the 

page. 

COMPLAINT 

9 
• Jobs . aeloNa. II Home Pcrtfafio Jobs Connee1>0ns lnterem • C..- Resources • Membenll1p: Baste (Upgr.idel 

• Jo bs )oE-r r ~s  Ft.II Tir:1:- ;ubs 

JrJ ' r 

Personal Information 

Fir tt•IJ~e: 

: - t 

Phu1H1._ 

,, - ,-:.' 

·, ~-J ~ t c n 1• ,a'.' -: 1 r. i:! .

1.,.. 11 . ..j j tt-.:r r: J ,.: _:i1_ 1 ·,., ; .. r ) 1 •.11 t ~•~ ~::: :1 0~ t,:, •l-1e •-1 , lie n :. ,': ~d __ .t,.;,,: 1 f! •:r ,h~ L :; ;,: - .:.i .:i • -:- Ti: ~ms 

cf .5t:", ic>: :t n•. tr 'J KY ::,:, c:,• L t H:_p :- _-,' ' Tc,;i: ,;-:r·:i97':- : 1 -.ilr .:0 1 1::::t up . S n ~·:;;,?spern n·1i -· a-::c· 1 r.J_'·,r ,i_;·_ r•.; b1Jt : JI?; 

;;, r, ~ j ., .a r:,f -:;; 1, ff :1 r 

Account Settings 

· : - ~ - _.r •r '<' ,.• 1 ::-

: : ~r- 1 J . : c.= 

- :. ~ _; - 1.;: . 1 1 , ... --

Career Settings 

,, 

3 __ , ,, 

,, 

1 1 t •' ' Stf .:! ·n fL•"" ' ,::_ . I • r - j T I"' --: 

r.,. .1t" ~ • -r n ·" .:.i1.. ·--:i-

,_, .3 11 _':; t~:! d .::i.. ,,.., • J~,.. t ~ 

- ·.•!:J 

12:ii VJ::·11'" 

24. Third, in numerous instances, Defendants call telephone numbers obtained 

through websites that mislead consumers into selecting "yes" in a checkbox placed directly 

COMPLAINT 

10 
under a question having nothing to do with obtaining consent to receive telemarketing calls from 

Defendants or about educational and vocational products. 

25. For example, Defendants bought leads from "FindFamilyResources.com," a 

website claiming to offer consumers infonnation about Temporary Assistance to Needy Families 

(TANF), welfare, and unemployment insurance. The excerpt below shows a landing page that 

tells consumers they may "Learn More About Benefits Assistance" by submitting contact 

information in the boxes immediately following onscreen. 

\\\ Fi~dFa':1:1ilyR~u~~ •: j, 1 1

'f,P -, r ··- ,;r._ :1~,, ,. 1h "! ,: ;.. r e-·-., 

Learn More About Benefits Ass ista nce in 

L.3.-;tt-l::t "lE! 

D-0 1_-~ 

t -? .; l'J,J 

Ef ,::t'1·E 1: ] 1.::s ·· r ,:,Jn s~ntt1J r3,::,:11ve: ~/"'1 aIls fr-r n iin,·J.3rn rl;:r-:i saur,:-:;3 •:: rn 3i"i·~•Jri.::!sr.; t2n,: I ,'\1·111 r:,::r;~ 

inf,Jri,11;;.!1 .e n~.1Nsl-:!U:3rs ,,h i,::t', r-n z,j' o:intJ1n -;r.e,::1:::I ,:iff~rs from ,:i1.1r sel-::( 1:::;rtn-?.r:: ! ::i l·s,J ,:.ijn•s·=nt w t s ,::,Jnt:.ct-;:d 

r3 ]~r~in,J -:!•::·1.1wtri:m ;:I ;:ri,: ,Jtl'Br opp-:irtur1it1 =.s -'3t the: i:-1·1,Jn~ nu Y1~::r p,:r..,ilr':-:!•: 1ni:Ju,::m.g ...,...,,J.:11s nur.1:.ar 1.1 .;ilng .:m 

:;1.1t,Jm.;:s :: t-?-'-:!~hon.e ,::-i_jhng ~-; tem I ma;· :.s:: m nt,3-:.t~c : , ,:rnlin~-.;,::\1-1"1~lp W "l"l ~r 1 ,J f tt'1 .; f•Jll,n,ir.g cartners 

r~-;; :::r-:l s::3•:; ,Jf :,~ n•J ,:in a f3,:::r;1I •Jr st:::i.te •: ,:r rr,:,t ,:G.11 h; t. Tl'ii·3 is ~ ·3.;p,:;r.; t-3 ,Jt:; 1,) n.:J ,JIT-e r f,:ir ~-:-uc,;ti Jn C,:in:: -3nt 1·;: 

n~t rs,:pJir,s, j ,;;•; .~ ,:··Jn ::itl,:rr, of usin ;; th1.; .s-3r,1>:.e 

Continue Here 

int:wri 7:[i•:.n Fin~F·; r-HI 'R-e; 1ur,::3·:, .-:'.•1r1is n-1t .;ffi1i.3t.;.:,: v,,•itt"i. ;ii1tt1,:rri"'--3,:_,:i; ~nr.',Jfs~c ,j•, t11 ,; Units!'.! ::-t3t-:::. 

q,J:,-3rn""'1 .::nt Fln~F--1 111 K-; ';Ouri:as.,:c "'"I in n,J ~3 · •J1J ; r 3.nl-3~ 5 ti'"1s ; 1.1c,:.s:;5 ,"Jf .;n•; l t::c;li;-;tior. fm U :3 ':•l'1~rnt:t -3 nt 

::-3r 9fit;: ~nc m0net;r, a•,;s1st1n,:~ ,Jf .:m 1\(1 nc. 

E1 d1c,:m J "C,Jntmue H-3 r-3· fJU 3gr-e -? to th-3 FincF3~11 11Ra.;.Jur:.:;s ,:,:rm T-::r s ,Jf .?-er~·t ·:e ar ~ Pri .' 3: C'J Poli(!' \,Ju 

al ;: ::, agr-::s ta r~•:-31\'3 r-9gul3r -? f'l1.:iil ,_ir:;,:ata.; ra~~r:::1nJ th~ t ':'n3fit :: 3.nt5 ; ss1; t.:n,:-:: t:'r>'l'lr-3 :"!'l s ,3·•1:1il3~1~ to ,ou 

Y,:iu r1 2;1 unsu":;:,:ri:.e, tr•Jr.1 th'=S-3 -3 ;'1311 ur;d..;t-? s .:it ;in~· rn-9 

26. Below the boxes is the stand-alone statement "I declare that I am a U.S. resident 

over the age of 18 and agree to this site's terms," followed by "Yes" and "No" radio buttons for 

the consumer to select. 

COMPLAINT 

11 
27. After the radio button is a dense block of text, the middle of which states that 

consumers who click "Yes" consent to receiving calls about "educational and other 

opportunities." The end of the text block states, "This is an optional offer for education. 

Consent is not required as a condition of using this service," but there is no explanation of how a 

consumer could learn more about benefits assistance without clicking "Yes." 

28. Following this text block is a large yellow button with the text "Continue 

Here v.ith sponsored ads and offer>.,, 

29. If a consumer selects "Yes" and clicks the yellow button, the website and 

Defendants proceed as though the consumer has agreed to receive telemarketing calls for " ,ponso,cdads 

,ndoffm. " and "educational and other opportunities" unconnected to the assistance the consumer 

requested. 

30. In addition to hiding the true nature of the calls, in many instances, the job and 

benefits websites do not identify the education providers or other sellers on whose behalf 

consumers will be called. Consumers therefore do not agree to receive calls from these sellers. 

31. For example, the web pages depicted in Paragraph 25 above, and below in this 

Paragraph, do not include any of the names used by Defendants, or any of the schools on whose 

behalf Defendants made telemarketing calls. Instead, each includes a hyperlink purporting to 

identify additional "partners" from whom consumers will receive calls. In numerous instances, 

such hyperlinks have named thirty or more telemarketers, but not the schools on whose behalf 

Defendants make calls. 

COMPLAINT 

12 
StartJobs JoesEARcn LOGIN 

Creat~An Account! PACKERS 

.. r .,, Location: - . r 

JOB OESCR' TIO 

';,_ . --· -=- 1: ~ ;-, f' ; :i . ~ .f~ , : =~· 

:r 

T:.,r _j, 

Powered by: 

.:I li·iWii 

By applying to this job you are agreeing to the Terms and Conditions. To use our 

website. you must agree with the Terms and Conditions and both meet and comply 

with their provisions. 

Cooyright 2015 by StanJobs. 

Defendants Have Received Complaints about Unwanted Calls 

32. Numerous of Defendants' clients, either directly or through intermediaries, have 

informed them of the deceptive nature of the websites through which they obtain consumers' 

telephone numbers. For example, one client sent Defendants 22 compliance alerts regarding the 

deceptive websites over the course of a five-month period. In response, Defendants have often 

falsely denied purchasing telephone numbers from the operators of the websites or promised 

COMPLAINT 

13 
their clients that they would cease using the deceptive websites, but surreptitiously continued to 

buy, and make calls to, telephone numbers from these websites. 

33. Defendants have received numerous complaints from consumers who received 

telemarketing calls, stating that they were on the Registry and that they had not authorized 

Defendants or the sellers Defendants represent to call them. 

34. Defendants train their sales representatives to market vocational and postsecondary education over consumers' objections. This training includes providing call 

representatives with a script that instructs them to continue marketing even if consumers have 

not requested the information or have stated they have no interest in vocational and postsecondary education programs. Defendants award representatives prizes for making "rebuttals" 

to complete their sales pitch over consumer objections in this manner. 

35. Defendants also have a specific script to instruct telemarketers on how to 

overcome objections from consumers who thought they were applying for help obtaining health 

insurance or Medicaid benefits. They instruct telemarketers to "[l]isten to the student's 

objections on going back to college," then "[r]epeat the student's objection~ back to the student 

using [ e ]xcitement," and finally move on with their pitch. 

36. In one instance, for example, Defendants' representative called a consumer and 

asserted that she had indicated online that she wanted information about higher education. The 

consumer expressly denied having requested such information and stated that she was only 

looking for information about health insurance. Defendants' sales agent responded, " [a]ll right, 

you just trying to get a little help with getting some insurance?" The consumer confirmed that 

she was just looking for help with insurance. Disregarding the consumer's clearly-stated lack of 

COMPLAINT 

14 
interest and the obvious absence of consent, Defendants' representative then continued pitching 

educational programs. 

Calls Transferred from Telemarketing Affiliates 

37. In addition to dialing consumers directly, Defendants also cause their 

Telemarketing Affiliates to make unsolicited calls to consumers. These Telemarketing Affiliates 

obtain consumers' telephone numbers through websites similar to those described in Paragraphs 

17 to 31 . Telemarketing Affiliates then make outbound calls to those numbers, market postsecondary and vocational education products, and then transfer the calls with the consumer still 

on the line to Defendants for further telemarketing. Defendants refer to these transferred 

consumers as "warm transfers" and employ the same script and marketing approach that they use 

for their own outbound calls. 

38. Defendants' Telemarketing Affiliates have initiated millions of outbound calls to 

consumers, resulting in more than 740,000 "warm transfers" to Defendants, of which more than 

190,000 were consumers whose telephone numbers were on the Registry. 

39. Defendants provide Telemarketing Affiliates with substantial assistance and 

support by retaining and paying them to make the outbound calls that resulted in warm transfers 

to Defendants, and in other ways. For example, Defendants agree to share with Telemarketing 

Affiliates nearly half of the revenue Defendants earn from the sale of leads that result from· warm 

transfers. In some instances, Defendants also supply Telemarketing Affiliates with consumer 

telephone numbers to call on Defendants' behalf. Defendants also, in some instances, review 

. and approve Telemarketing Affiliates' scripts. 

40. Defendants received numerous reports from their clients, directly or through their 

intermediaries, about the deceptive nature of the websites used by Telemarketing Affiliates and 

COMPLAINT 

15 
their failure to inform consumers adequately that they would receive Defendants' telemarketing 

calls about post-secondary and vocational education. They also received complaints from 

consumers alerting them to conduct that violated the TSR. Despite such notices, Defendants 

continued to pay Telemarketing Affiliates to make outbound calls and provide warm transfers to 

Defendants. 

41. In one instance, Defendants learned from a post-secondary education provider, 

directly or through an intermediary, that one of Defendants' Telemarketing Affiliates was calling 

consumer leads obtained from the website excerpted below, www.armyenlist.com. On that 

website, consumers were told to provide their information if they wanted "information about 

joining the Army or educational opportunities." Below this was an option for consumers to 

indicate that they were only interested in the military, as opposed to educational opportunities. 

Yet, even when consumers selected the option stating that they were interested only in the 

military, the Telemarketing Affiliate nonetheless called the consumers about educational and 

vocational opportunities and warm-transferred them to Defendants. Defendants, in tum, 

continued the telemarketing effort and tried to convince the consumers to speak with a sales 

representative for a post-secondary education provider. And even after the education provider 

directly or indirectly discussed this practice with Defendants, they continued to work with the 

same Telemarketing Affiliates and market schools to consumers the Telemarketing Affiliates 

transferred to Defendants. 

COMPLAINT 

16 
Information Reauest Would you like information abolt\ joining the Army o, educational opportunities? Fil out the form to rec.cM!: FREE 

,nformation f 

First Name 

Last N-tme 

Phone! Number 

Email Address 

By entering my Information and dcking •submit/ I understand that I may be mntaded by ArmyEn5st.cmn via phone, 

email or text about mlfitary uind education information • 

... 

Did you kl HJ,... ll, dt t he1e 

,IH' OYt'I 1 ~o J 1lt,:1 t> r,• 

~.1flt•r<, ;,v,Hl<tlili- 111 th ·..: 

Army 111dud1nr 

• r't•(J1,":1'!''rllq 

,. McJ'd'l1' 

,., Tr-<.. l u, --'.:9 .. 

• (Juc.it ,t · 

loin wiU1 d Hudd y 

•; :,i, up ¥H1 qu,f, 'v at the 

...,,. ,it· l !m P . y(Ju L,"! 11 C , 

thr P\JQh B,1<.l ,. ' 1,1 ·1in9, 

."d\/',1nc,•(1 Inc11~,.h1.i: 

lr,1.n1ny o..1:.d ~•-'Jf h rst 

Arn vc Cut, 11<,:,,,;, roment 

IO'jt-tht'f 

R••My For Chdn9e / 

Tr,1·•~1 th rf'\u:;lln.Jt the 

U. S . m1J t hr- w,rM 

Tt·•S • 111 pnv.atp • '!lo~ II 01.~, 11; l'IOl ;,tf,,l,llfe ll -. 1' OI(! U.S. i;t,, efflt1 !'nt. U.S . .l!.t"'d ,.,!"I!., e · tk ,-rtn->c,c ., v ,-•tr,11'111 A"11 ""· 0 ..5. '°"l'.:~I"'! ~o• nr ­

t-wi ve nor ,ev.-we4 rf,.• mf<1P·•1ffb4,,t, U14 ••'"t" • not co,i.11ected • •riT .-...,, f1 W"~r11rr,cnt ~nn Jf}' CJ • _ _, • ( kt: tu hn.i ..,,..,f' •on- unn •b<lu1 o,,,., ,.. ti"ll!' •t! • 

, th:t •.J.~. Ori:i,d1tm~11t .,f VeL::rt.u':; Aff~n-::, ptec:i~• 1:1~1c th:: <1ff1ua1 U.S . 9u11t:1nm1:11lweb 1..!e tor ..ie,.in•, be:u~~ c1t hUP:l/W'MILVG.Q011 

42. In another example, a post-secondary education provider directly or indirectly 

told Defendants that one of their Telemarketing Affiliates was calling consumer leads obtained 

from a website that promised to help consumers earn money by working from home. The 

website, which is excerpted below, did not inform consumers that they would receive 

telemarketing calls from Defendants and, to the contrary, includes language stating, "We respect 

your privacy and will not rent or share your information with anyone." Despite this statement, 

the Telemarketing Affiliate attempted to market vocational and post-secondary education to 

consumers who had entered their information on the website, and they warm-transferred many of 

COMPLAINT 

17 
these consumers to Defendants, who continued the marketing effort. And even after the 

education provider directly or indirectly discussed this practice with Defendants, they continued 

to work with the same Telemarketing Affiliates and market schools to consumers the 

Telemarketing Affiliates transferred to Defendants. 

For Immediate Relea se on : 

Make money and change your life NOW! Within 5 minutes 

you could be making REAL MONEY working from the 

comfort of your own home! 

i-io Prior E) :p&rience . or S~.i!ls Required 

6 c Your o·,.,n Boss and Choose Your Own Hours. 

Start Earning lmrm::di c1 tely 1 

1... imi'ecl iJumter of 3pots Open. Chc:ck Availabiiity in Your Area 

- - --- --- - --- ~- - - ~- -- -- - - - To Claim Your Spot Complete lbis Fonn: 

Work From Home Opportunities H~ve Beer1 Featured On: 

w;,,,!,. m . . CM] 

COMPLAINT 

18 
43. In still another instance, Defendants learned from a post-secondary education 

provider, directly or indirectly, that one of Defendants' Telemarketing Affiliates was calling 

consumers who had only expressed interest in obtaining employment. In the excerpt below, the 

Telemarketing Affiliate's website, simplyjobs.com, purported to advertise "Coca Cola Jobs" in 

the consumer's area and instructed the consumer to enter his or her telephone number to 

"[c]omplete your registration." Despite the claims made on the website, the Telemarketing 

Affiliate telemarketed vocational and post-secondary education to those consumers and warmtransferred many of them to Defendants, who tried to convince the consumers to speak with a 

sales representative for a post-secondary education provider. 

0 SimplyJobs 

Good news, we've found Coca Cola Jobs in 

Phone: 

C.Jr " ·ers .:P .,.._ - 1.,._,.::' : $$ - - ., .. ~· ::. -: ..••_ .t·~,.; , ; =- :- ': 

Get Started & Apply > 

44. Defendants have failed to monitor and enforce their Telemarketing Affiliates' 

compliance with the TSR, even after Defendants were on notice of violations of the law. 

COMPLAINT 

19 
THE TELEMARKETING SALES RULE AND 

THE NATIONAL DO NOT CALL REGISTRY 

45 . Congress directed the Commission to prescribe rules prohibiting abusive and 

deceptive telemarketing acts or practices pursuant to the Telemarketing Act, 15 U.S.C. §§ 6101-

6108 . The Commission adopted the original TSR in 1995, extensively amended it in 2003 , and 

amended certain provisions thereafter. 16 C.F.R. Part 310. 

46. Among other things, the 2003 amendments to the TSR established a do-not-call 

registry, maintained by the Commission, of consumers who do not wish to receive certain types 

of telemarketing calls. Consumers can register their telephone numbers on the Registry without 

charge either through a toll-free telephone call or over the Internet at donotcall.gov. 

47. The FTC allows sellers, telemarketers, and other permitted organizations to access 

the Registry over the Internet at telemarketing.donotcall.gov, to pay the fee(s) ifrequired, and to 

download the numbers not to call. 

48. Under the TSR, a "telemarketer" means any person who, in connection with 

telemarketing, initiates or receives telephone calls to or from a customer or donor. 16 C.F.R. § 

310.2(ff). A "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. 16 C.F.R. § 310.2(dd). 

49. Under the TSR, an "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. 

16 C.F.R. § 310.2(x). 

50. The TSR prohibits sellers and telemarketers from initiating an outbound telephone 

call to numbers on the Registry unless the seller or telemarketer can demonstrate that the seller 

(1) has obtained the consumer's express agreement, in writing, to place such calls, or (2) has an 

COMPLAINT 

20 
established business relationship with that consumer, and the consumer has not stated that he or 

she does not wish to receive such calls. 16 C.F.R. § 310.4(b)(l)(iii)(B). Valid written consent to 

receive a live telemarketing call to a number on the Registry requires: (i) a writ~ng signed by the 

consumer, (ii) clearly evidencing authorization to receive calls placed by or on behalf of a 

specific party, and (iii) stating the telephone number to which such calls may be placed. 16 

C.F.R. § 310.4(b)(l)(iii)(B)(l). 

51. The TSR also prohibits any person from providing 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 practice that violates § 310.4 of the Amended TSR. 

16 C.F.R. § 310.3(b). 

52. Pursuant to Section 3(c) of the Telemarketing Act, 15 U.S.C. § 6102(c), and 

Section 18(d)(3) of the FTC Act, 15 U.S.C. § 57a(d)(3), a violation of the TSR constitutes an 

unfair or deceptive act or practice in or affecting commerce, in violation of Section 5(a) of the 

FTC Act, 15 U.S.C. § 45(a). 

VIOLATIONS OF THE TELEMARKETING SALES RULE 

COUNT! 

Calls to Persons Registered on the National Do Not Call Registry 

53. In numerous instances, in connection with telemarketing, Defendants have 

initiated or caused others to initiate an outbound telephone call to a person's telephone number 

on the National Do Not Call Registry in violation of the TSR. 16 C.F.R. § 310.4(b)(l)(iii)(B). 

COMPLAINT 

21 
COUNT II 

Assisting and Facilitating Calls to Persons Registered on the National Do Not Call Registry 

54. Defendants have provided substantial assistance and support to one or more 

Telemarketing Affiliates even though Defendants knew or consciously avoided knowing that one 

or more such Telemarketing Affiliates were engaged in violations of§ 310.4 of the TSR. 

Defendants, therefore, have violated 16 C.F.R. § 310.3(b ). 

CONSUMER INJURY 

55. Consumers in the United States have suffered and will suffer injury as a result of 

Defendant's violations of the TSR. Absent injunctive relief by this Court, Defendants are likely 

to continue to injure consumers and harm the public interest. 

THIS COURT'S POWER TO GRANT RELIEF 

56. Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), empowers this Court to grant 

injunctive and other ancillary relief to prevent and remedy any violation of any provision of law 

enforced by the FTC. 

57. Section 5(m)(l)(A) of the FTC Act, 15 U.S.C. § 45(m)(l)(A), as modified by 

Section 4 of the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461 , as 

amended, and as implemented by 16 C.F.R. § 1.98(d), authorizes this Court to award monetary 

civil penalties of up to $40,000 for each violation of the TSR, 16 CT R.§ 1.98(d). Defendants' 

violations of the TSR were committed with the knowledge required by Section 5(m)(l)(A) of the 

FTC Act, 15 U.S.C. § 45(m)(l)(A). 

58. This Court, in the exercise of its equitable jurisdiction, may award ancillary relief 

to remedy injury caused by Defendants' violations of the TSR and the FTC Act. 

COMPLAINT 

22 
PRAYER FOR RELIEF 

WHEREFORE, Plaintiff requests that this Court, as authorized by Sections 5(a), 

5(m)(l)(A), and 13(b) ofthe FTC Act, 15 U.S.C. §§ 45(a), 45(m)(l)(A), 53(b), and pursuant to 

its own equitable powers: 

A. Enter judgment against Defendants and in favor of Plaintiff for each violation 

alleged in this complaint; 

B. Award Plaintiff monetary civil penalties from each Defendant for every violation 

of the TSR; 

C. Enter a permanent injunction to prevent future violations of the TSR and the FTC 

Act by Defendants; and 

D. Award Plaintiff such other and additional relief, including disgorgement, 

as the Court may determine to be just and proper. 

Dated: March 22, 2019 Respectfully submitted, 

Alden F. Abbott 

Ge: Counsel 4: 

1.ttfuL;} •. ~ WILLIAM J. HODOR, Local Counsel 

Federal Trade Commission 

Midwest Region 

230 South Dearborn Street, Room 3030 

Chicago, IL 60604 

312-960-5634 [telephone] 

312-960-5600 [facsimile] 

whodor@ftc.gov 

COMPLAINT 

23 
JASON SCHALL 

LEAH FRAZIER 

PATRICK ROY 

Federal Trade Commission 

600 Pennsylvania Ave, NW 

Mail Stop CC-10232 

Washington, DC 20580 

202-326-2251 [telephone] 

202-326-3768 [facsimile] 

ischall@ftc.gov [ e-mail Schall] 

lfrazier@ftc .gov [e-mail Frazier] 

proy@ftc .gov (e-mail Roy] 

Attorneys for Plaintiff 

FEDERAL TRADE COMMISSION 

COMPLAINT 

24