Case: 1:19-cv-01984 Document #: 293 Filed: 11/21/23 Page 1 of 10 PageID #:9619 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

 

FEDERAL TRADE COMMISSION, Case No. 1:19-cv-01984 

 

Plaintiff, Judge: Lindsay C. Jenkins 

v. 

DAY PACER LLC, et al. 

Defendants. 

ORDER FOR PERMANENT INJUNCTION AND OTHER RELIEF 

Plaintiff, the Federal Trade Commission (“Commission”), filed its Complaint for civil 

penalties, a permanent injunction, and other relief in this matter, pursuant to Sections 5(a), 

5(m)(1)(A), 13(b), and 16(a) of the FTC Act, 15 U.S.C. §§ 45(a), 45(m)(1)(A), 53(b), and 56(a)(1), 

and Section 6 of the Telemarketing and Consumer Fraud and Abuse Prevention Act (the 

“Telemarketing Act”), 15 U.S.C. § 6105. Plaintiff has moved for summary judgment pursuant to 

Federal Rule of Civil Procedure 56 against Defendants Day Pacer LLC, EduTrek L.L.C., Raymond 

Fitzgerald, David Cumming, and Ian Fitzgerald. Defendant David Cumming died after the parties 

had fully briefed summary judgment and his estate has been substituted as a defendant. The 

Court, having considered the memoranda and exhibits filed in support of Plaintiff’s Motion for 

Summary Judgment, and all other pleadings and filings in this action, granted Plaintiff’s motion 

in part for the reasons set forth in its Memorandum Opinion and Order [Dkt. 280]. The Court 

held a hearing on remedies on November 8, 2023, and now enters this Order granting injunctive 

relief. This Order does not impose any injunctive or other relief (including, without limitation, 

Page 1 of 10 
 

 

 

Case: 1:19-cv-01984 Document #: 293 Filed: 11/21/23 Page 2 of 10 PageID #:9620 

the relief or other requirements under Section II-V hereof) against David Cumming or his estate. 

Nor does it make any findings with respect to David Cumming or his Estate. The Court will 

separately enter an Order on civil monetary penalties with respect to all Defendants. 

THEREFORE, IT IS ORDERED as follows: 

FINDINGS 

1. This Court has jurisdiction over this matter. 

2. The Complaint states a claim upon which relief may be granted, charging that Defendants 

violated Section 5 of the FTC Act, 15 U.S.C. § 45, and the FTC’s Telemarketing Sales Rule 

(“TSR” or “Rule”), as amended, 16 C.F.R. Part 310, in the Telemarketing of vocational training 

and post-secondary education programs. 

3. The Corporate Defendants violated the TSR, 16 C.F.R. § 310.4(b)(1)(iii)(B) (Count I) by 

initiating or causing the initiation of outbound telephone calls to consumers whose telephone 

numbers were on the National Do Not Call Registry (“Registry”). The Corporate Defendants also 

violated 16 C.F.R § 310.3(b) (Count II) by assisting and facilitating their inbound transfer 

partners’ violations of the TSR. 

4. The Corporate Defendants’ TSR violations are deemed to constitute unfair or deceptive 

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

5. There is no genuine issue of material fact as to any of the Defendants’ affirmative defenses, 

and summary judgment for the FTC is granted as to each of those defenses. 

6. Corporate Defendants Day Pacer LLC (“Day Pacer”) and EduTrek L.L.C. (“EduTrek”) 

formed a common enterprise. Day Pacer is also a corporate successor to EduTrek. The 

Corporate Defendants had knowledge that their acts and practices were prohibited by the TSR. 

Page 2 of 10 
 

 

 

 

 

Case: 1:19-cv-01984 Document #: 293 Filed: 11/21/23 Page 3 of 10 PageID #:9621 

7. The Individual Defendants either participated in the violative acts or practices and/or had 

authority to control them. The Individual Defendants knew or should have known of the 

Corporate Defendants’ violative acts and practices and knowledge that those acts and practices 

were prohibited by the TSR. 

8. There is a reasonable likelihood that Defendants Day Pacer LLC, EduTrek L.L.C., 

Raymond Fitzgerald, and Ian Fitzgerald (“Day Pacer Defendants”) will engage in future violations 

absent the injunctive relief requested. Accordingly, it is proper in this case to issue a permanent 

injunction under Section 13(b) of the FTC Act, 15 U.S.C. § 53(b) that: a) bans the Day Pacer 

Defendants from engaging in, or assisting others engage in, telemarketing activities; and b) orders 

other relief including recordkeeping and compliance monitoring provisions to ensure compliance 

with this Order. 

10. Entry of this Order is in the public interest. 

DEFINITIONS 

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

A. “Defendants” for purposes of this Order means all of the Individual Defendants (as 

defined herein) and the Corporate Defendants, individually, collectively, or in any combination. 

B. “Corporate Defendants” means Day Pacer LLC (also d/b/a Edutrek, EdSoup, Our School 

Search, College Info, Degree Spots, and Insurance Info), Edutrek LLC (also d/b/a EdSoup), and 

their successors and assigns. 

C. “Day Pacer Defendants” means the Corporate Defendants, Raymond Fitzgerald, and Ian 

Fitzgerald. 

Page 3 of 10 
 

 

 

 

Case: 1:19-cv-01984 Document #: 293 Filed: 11/21/23 Page 4 of 10 PageID #:9622 

D. “Individual Defendants” for purposes of this Order means Raymond Fitzgerald, Ian 

Fitzgerald, and David Cumming. 

E. “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. 

ORDER 

I. BAN ON TELEMARKETING 

IT IS ORDERED that the Day Pacer Defendants are permanently restrained and enjoined 

from participating in Telemarketing or assisting others engaged in Telemarketing, whether directly 

or through an intermediary. 

II. ORDER ACKNOWLEDGMENTS 

IT IS FURTHER ORDERED that the Day Pacer Defendants obtain acknowledgments of 

receipt of this Order: 

A. Each Day Pacer 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. 

B. For 20 years after entry of this Order, Defendants Raymond Fitzgerald and Ian Fitzgerald 

for any business that such Defendant, 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, agents and representatives having managerial responsibilities for conduct 

related to Lead Generation; 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 

Page 4 of 10 
 

 

 

Case: 1:19-cv-01984 Document #: 293 Filed: 11/21/23 Page 5 of 10 PageID #:9623 

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

responsibilities. 

C. 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. 

III. COMPLIANCE REPORTING 

IT IS FURTHER ORDERED that the Day Pacer Defendants make timely submissions to 

the Commission: 

A. One year after entry of this Order, each Day Pacer Defendant must submit a compliance 

report, sworn under penalty of perjury: 

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

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

of the Commission 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 Defendants Raymond Fitzgerald and Ian 

Fitzgerald 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. 

Page 5 of 10 
 

 

 

 

Case: 1:19-cv-01984 Document #: 293 Filed: 11/21/23 Page 6 of 10 PageID #:9624 

2. Additionally, Defendants Raymond Fitzgerald and Ian Fitzgerald 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. 

B. For 20 years after entry of this Order, each Day Pacer Defendant must submit a 

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

following: 1. Each Day Pacer 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, Defendants Raymond Fitzgerald and Ian Fitzgerald 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. 

Page 6 of 10 
 

 

 

 

 

 

 

Case: 1:19-cv-01984 Document #: 293 Filed: 11/21/23 Page 7 of 10 PageID #:9625 

C. Each Day Pacer Defendant must submit to the Commission notice of the filing of any 

bankruptcy petition, insolvency proceeding, or similar proceeding by or against such Defendant 

within 14 days of its filing. 

D. Any submission to the Commission 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 foregoing 

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

applicable), and signature. 

E. 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. DAY PACER, X190022. 

IV. RECORDKEEPING 

IT IS FURTHER ORDERED that the Day Pacer Defendants must create certain records 

for 20 years after entry of the Order, and retain each such record for 5 years. Specifically, each 

Corporate Defendant, in connection with Lead Generation, and Defendants Raymond Fitzgerald 

and Ian Fitzgerald for any business that such Defendant, individually or collectively with any other 

Defendants, is a majority owner or controls directly or indirectly, must create and retain the 

following records: 

A. accounting records showing the revenues from all goods or services sold; 

Page 7 of 10 
 

 

 

 

 

 

Case: 1:19-cv-01984 Document #: 293 Filed: 11/21/23 Page 8 of 10 PageID #:9626 

B. 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; 

C. records of all consumer complaints and refund requests, whether received directly or 

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

D. all records necessary to demonstrate full compliance with each provision of this Order, 

including all submissions to the Commission; and 

E. a copy of each unique advertisement or other marketing material. 

V. COMPLIANCE MONITORING 

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

compliance with this Order: 

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

each Day Pacer 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 is 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 is authorized to communicate directly 

with each Day Pacer Defendant. The Day Pacer Defendants must permit representatives of the 

Commission to interview any employee or other person affiliated with any Defendant who has 

agreed to such an interview. The person interviewed may have counsel present. 

Page 8 of 10 
 

 

Case: 1:19-cv-01984 Document #: 293 Filed: 11/21/23 Page 9 of 10 PageID #:9627 

C. The Commission may use all other lawful means, including posing, through its 

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, any consumer reporting 

agency must furnish consumer reports concerning Defendants Raymond Fitzgerald and Ian 

Fitzgerald pursuant to Section 604(1) of the Fair Credit Reporting Act, 15 U.S.C. §1681b(a)(1). 

Page 9 of 10 
 

Case: 1:19-cv-01984 Document #: 293 Filed: 11/21/23 Page 10 of 10 PageID #:9628 

VI. 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. 

Enter: 19-cv-1984 

Date: November 21, 2023 

Lindsay C. Jenkins 

UNITED STATES DISTRICT JUDGE 

Page 10 of 10