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RUTHANNE M. DEUTSCH 

Federal Trade Commission 

·600 Pennsylvania Ave., N.W. 

Washington, D.C. 20580 

Telephone: (202) 326-3677 

Facsimile: (202) 326-2477 

Email: rdeutsch@ftc.gov 

LAURA E. DUFFY 

United States Attorney 

RA VEN M. NORRIS (Local Counsel) 

Assistant U.S. Attorney 

State of California Bar No. 232868 

Office of the U.S. Attorney 

880 Front Street, Room 6293 

San Diego, CA 92101-8893 

Telephone: (619) 557-7157 

Facsimile: (619) 557-5004 

email: Raven.Norris@usdoj.gov 

2iJ to AUG 24 PM 12: i 2 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF CALIFORNIA 

FEDERAL TRADE COMMISSION, 

600 P~nnsxlvania A venue, NW 

Washington, DC 20580 

Petitioner, 

V. 

RESPONSE MAKERS, LLC, 

11230 Sorrento Valley Road, Suite 100 

San Diego, California 92121 

Respondent. 

C) .r) 

) / 

) '10 CV 17 6 8 WQH ) 

) 

D 

':~ 

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Case No. 

BLM 

PETITION OF THE FEDERAL TRADE COMMISSION FOR AN ORDER TO ENFORCE 

A CIVIL INVESTIGATIVE DEMAND 

Case 3:10-cv-01768-WQH -BLM Document 1 Filed 08/24/10 Page 1 of 8 
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Preamble 

Petitioner, the Federal Trade Commission ("FTC" or ''Commission") petitions this Court, · 

pursuant to Sections 16 and 20 of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. §§ 56, 

57b-l, and 28 U.S.C. §§ 1337 and 1345, and Fed. R. Civ. P. 81 (a)(5), for an order requiring 

respondent, Response Makers LLC ("Response Makers"), to produce responses to written 

interrogatories and to document requests, and a sworn verification as to these responses, in response to 

a Commission Civil Investigative Demand ("CID"), a type of administrative subpoena, issued to 

Response Makers on July 27, 2010 .. The CID was issued in the course of a non-public investigation 

concerning possible violations by Response Makers of Sections 604(f), 607(a), 607(e)(l ), and/or 

607(e)(2) of the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 168lb(f), 168le(a), 1681e(e)(l), 

168le(e)(2), and of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), with respect to, inter alia, the sale 

and marketing of prescreened consumer report information. 

Response Makers' absolute failure to comply with the CID is impeding the Commission's 

investigation. If, based on its investigation, the Commission has reason to believe that v~olations of the 

FTC Act or the FCRA have occurred, the Commission may seek monetary civil penalties and 

injunctive relief or other equitable relief under the FCRA, 15 U.S.C. §§ 1681 - 1681x, as well as 

injunctive or other equitable relief under the FTC Act,§§ 45(a), 53(b). r 

The Declaration under penalty of perjury of Katherine Armstrong, which verifies the allegations 

of this Petition, is attached hereto as Petition Exhibit (Pet. Exh.) 1. 

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---

Petition Allegations 

In support of its Petition, the Commission alleges as follows: 

1. The Commission is an administrative agency of the United States, organized and existing 

pursuant to the FTC Act, 15 U.S.C. § 41 et seq. The Commission is authorized and directed by Section 

5(a) of the FTC Act, 15 U.S.C. § 45(a), to prohibit unfair methods of competition and unfair or 

' 

deceptive acts or practices in or affecting commerce. 

2. The Commission likewise is authorized and directed to enforce the FCRA which, in 

Section 621, provides that "a violation of any requirement or prohibition imposed under the [FCRA] 

shall constitute an unfair or deceptive act or practice ... in violation of section 5(a) of the FTC Act." 15 

U:S.C. §1681s. 

3. Section 3 of the FTC.Act, 15 U.S.C. § 43, empowers the Commission to prosecute any 

inquiry necessary to its duties in any part of the United States. Section 6 of the Act, 15 U.S.C. § 46, 

empowers the Commission to gather and compile information concerning, and to investigate from time 

to time, the organization, business, conduct, practices and management of, any person, partnership or 

corporation engaged in or whose business affects commerce, with certain exceptions not relevant here. 

Section 9 of the FTC Act, 15 U.S.C. § 49, authorizes the Commission to issue subpoenas to compel the 

testimony of witnesses and the production of all such documentary evidence relating to any matter 

under investigation. Section 20 of the FTC Act, 15 U .S.C. § 57b-1, empowers the Commission to 

require by CID the production of documents or other information relating to any Commission law 

enforcement investigation. See also 15 U.S.C. § 168ls(a)(l) (providing the Commission with the same 

investigatory authority for violations of the FCRA). 

4. This Court also has jurisdiction to enforce the Commission's duly issued CIDs, including 

3 

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the CID issued to Respondent, under Section 20( e) of the FTC Act, which provides, in pertinent part: 

Whenever any person fails to comply with any civil investigative demand 

duly served upon him under this section, or whenever satisfactory copying 

or reproduction of material requested pursuant to the demand cannot be 

accomplished and such person refuses to surrender such material, the 

Commission, through such officers or attorneys as it may designate, may 

file, in the district court of the United States for any judicial district in 

which such person resides, is found, or transacts business, and serve upon 

such person, a petition for an order of such court for the enforcement of 

this section. 

15 U.S.C. § 57b-l(e). 

5. Response Makers is a California limited liability company. Eric Rothchild is the 

President and Principal Owner. Response Makers is located at 11230 Sorrento Valley Road, Suite 100, 

San Diego California, 92121. Pet. Exh. 1, , 4. Response Makers is engaged in, and its business 

affects, ."commerce" as that term is defined in Section 4 of the FTC Act, 15 U.S.C. § 44,. 

6. On April 15, 1999, the Commission issued a "Resolution Directing Use of Compulsory 

Process in Nonpublic Investigation Into the Acts and Practices of Unnamed Persons, Partnerships and 

Corporations Engaged in Acts or Practices in Violation of 15 U.S.C. § 1681 et seq., and/or 15 U.S.C. § 

45. The resolution authorized all compulsory process available to the Commission to be used to 

investigate, among other things, "whether persons, partnerships or corporations may be engaging in, or 

have engaged in, acts or practi.ces in violation of the FCRA, U.S.C. § 1681 et seq., and/or Section 5 of 

the FTC Act, 15 U.S.C. § 45, ... relating to information furnished to consumer reporting agencies, 

maintained in the files of consumer reporting agencies, or obtained as a consumer report from a 

consumer reporting agency." Pet. Exh. 2. 

7. On July 27, 2010, pursuant to the authority of the investigatory resolution, the 

Commission issued a CID seeking answers to interrogatories and documents concerning Response 

Makers' business practices involving the use of prescreened consumer reports. Pet. Exh. 2. The CID 

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was served on July 28, 2010, and directs Response Makers to submit the response materials by August 

4, 2010. Pet. Exh. 3; Pet. Exh. 2; Pet. Exh. 1, ,r7. 

8. Weeks earlier, an FTC investigator spoke with Response Makers' President Eric 

Rothchild about the Commission's investigation and the Commission's earlier efforts to serve a May 5, 

2010 CID at a different address. In that conversation, Mr. Rothchild confirmed that Response Makers 

would accept service of the CID at the Sorrento Valley Road address. Following that initial contact, 

FTC staff again sent the CID, and made a number of unsuccessful attempts to contact Mr. Rothchild by 

telephone concerning the Commission's need for responsive materials. Pet. Exh. 1, ,r 8. 

9. On July 29, 2010, FTC staff left a message for Mr. Rothchild reminding him that the 

return date for the CID was August 4, 2010. On the same day, Mr. Rothchild left a message for Ms. 

Armstrong, advising that he had received the CID and stating that he would cooperate in the 

Commission's investigation. On August 4, 2010, after yet another unsuccessful attempt to reach Mr. 

Rothchild directly, an FTC staff attorney left a voicemail reminding Mr. Rothchild that the responses to 

the CID were due by close of business that same day, and that, failing a response, the Bureau of 

Consumer Protection would have to ask the Commission's Office of General Counsel to institute CID 

enforcement proceedings. Pet. Exh. 1, ,r 9. 

10. · Despite repeated efforts, FTC staff has not been able to speak directly with Mr. Rothchild 

regarding the failure of Response Makers to respond to the CID. Furthermore, despite Mr. Rothchild's 

promise to cooperate in the investigation, the Commission has not received any of the information and 

documents requested by the CID. Pet. Exh. 1, ,r 10. 

11. Response Makers has not objected to the CID on any ground, and has not petitioned the 

Commission to quash or limit the CID, as provided in FTC Rule 2.7(d)(l), 16 C.F.R. § 2.7(d)(l). Pet. 

Exh. 1, ,r 11. 

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12. The CID is within the Commission's authority, the information and documents sought 

are reasonably relevant to the Commission's investigation, and the CIQ does not impose an 

unreasonable burden on Response Makers. Further, Response Makers' failure to comply with the CID 

greatly impedes the Commission's ongoing investigation, forces the Commission to expend additional 

public resources, and makes it impossible to assess the legality of Response Makers' practices. It also 

prevents the Commission from completing its investigation in a timely manner. Pet. Exh. 1, ,i 12. 

Prayer for Relief 

WHEREFORE, the Commission invokes the aid of this Court and prays: 

a. For the immediate issuance of an order directing Response Makers to show cause why it 

should not comply in full with the subpoena and CID; 

b. For a prompt determination of this matter and an order requiring Response Makers to 

fully comply with the CID within ten (I 0) days of such order; 

c. For such other relief as this Court deems just and proper. 

6 

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Respectfully submitted, 

WILLARD K. TOM 

General Counsel 

JOHNF.DALY 

Deputy General Counsel - Litigation 

LESLIE RICE MELMAN 

Assistant General Counsel - Litigation 

RUTHANNE M. DEUTSCH 

Attorneys for Petitioner 

Federal Trade Commission 

600 Pennsylvania Ave., N.W. 

Washington, D.C. 20580 

Telephone: (202) 326-3677 

Facsimile: (202) 326-2477 

Email: rdeutsch@ftc.gov 

LOCAL COUNSEL: RA VEN M. NORRIS 

Assistant U.S. Attorney 

State of California Bar No. 232868 

Office of the U.S. Attorney 

880 Front Street, Room 6293 

San Diego, CA 92101-8893 

Telephone: (619) 557-7157 

Facsimile: (619) 557-5004 

email: Raven.Non-is@usdoj.gov 

7 

Case 3:10-cv-01768-WQH -BLM Document 1 Filed 08/24/10 Page 7 of 8 
~JS 44 (Rev. 11/04) CIVIL COVER SHEET 

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings orother papers as required by law, except as provided 

by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating 

the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) \::," ( ~ F D 

I. (a) PLAINTIFFS DEFENDANTS 

Federal Trade Commission Response Makers, L:t[.Q O AUG 2 l~ -PM 12: I I 

·, Sari"E>'ieg'o (b) · '~; e· :f ,,: , .1.; ',: ·:. '

1 1~ County of Residence of First Listed Plaintiff • County of Residence of F.1rsM~1sted·Defendant ·.-;; ,.~;,.· _ ... ~._ .._ ..._.--------- ~11..J~ ~ l':U\'1 l}!:) I !:It, I 0 r ._:;-.... .t .... ,.,-.,r (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF SONLY) 

NOTE: IN LAND CONDEMNAT . USE THE LOCATION OF THE 

., ___ n£PUT'v 

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for Plaintiff 

(For Diversity Cases Only) and One Box for Defendant) 

Iii I U.S. Government 0 3 Federal Question PTF DEF PTF DEF 

Plaintiff (U.S. Government Not a Party) Citizen of This State O I 0 I Incorporated or Principal Place O 4 0 4 

of Business In This State 

0 2 U.S. Government 0 4 Diversity Citizen of Another State 0 2 0 2 Incorporated and Principal Place 0 5 0 5 

Defendant of Business In Another State (Indicate Citizenship of Ponies in Item Ill) 

Citizen or Subject of a 0 3 0 3 Foreign Nation 0 6 0 6 

Forei n Coun 

IV NATURE OF SUIT /Place an "X" in One Box Onlv\ 

I CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES I 

0 I IO Insurance PERSONAL INJURY PERSONAL INJURY 0 610 Agriculture o 422 Appeal 28 use 158 0 400 State Reapportionment 

0 120 Marine 0 310 Airplane 0 362 Personal Injury .. 0 620 Other Food & Drug 0 423 Withdrawal Iii 410 Antitrust 

0 130 Miller Act 0 31 S Airplane Product Med. Malpractice 0 625 Drug Related Seizure 28 use 1s1 0 430 Banks and Banking 

0 140 Negotiable Instrument Liability 0 365 Personal Injury .. of Property 21 USC 881 0 450 Commerce 

0 I SO Recovery of Overpayment 0 320 Assault, Libel & Product Liability 0 630 Liquor Laws ~w• w•.w y wn.JtTS 0 460 Deportation 

& Enforcement of Judgment Slander 0 368 Asbestos Personal 0 640 R.R. & Truck 0 820 Copyrights 0 470 Racketeer Influenced and 

0 151 Medicare Act. 0 330 Federal Employers' Injury Product 0 650 Airline Regs. 0 830 Patent Corrupt Organizations 

0 I 52 Recovery of Defaulted Liability Liability 0 660 Occupational 0 840 Trademark 0 480 Consumer Credit 

Student Loans 0 340 Marine PERSONAL PROPERTY Safety/Health 0 490 Cable/Sal TV 

(Exel. Veterans) 0 345 Marine Product 0 370 Other Fraud 0 690 Other 0 81 0 Selective Service 

0 I 53 Recovery of Overpayment Liability 0 371 Truth in Lending LABOR SOCIAL SECURITY 0 850 Securities/Commodities/ 

of Veteran's Benefits 0 350 Motor Vehicle 0 380 Other Personal 0 710 Fair Labor Standards 0 861 HIA ( 1395ft) Exchange 

0 160 Stockholders' Suits 0 355 Motor Vehicle Property Damage Act 0 862 Black Lung (923) 0 875 Customer Challenge 

0 190 Other Contract Product Liability 0 385 Property Damage 0 720 Labor/Mgmt. Relations 0 863 DIWC/DIWW (405(g)) 12 use 3410 

0 Liability Contract 890 0 Other Statutory Actions 195 Product 360 Other Personal Product Liability 0 730 Labor/Mgmt.Reporting 0 864 SSID Title XVI 0 

0 I 96 Franchise Injury & Disclosure Act 0 865 RSI (405/u\\ 0 891 Agricultural Acts· 

892 Economic Stabilization Act I REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 0 740 Railway Labor Act FEDERAL TAX SUITS 0 

0 210 Land Condemnation 0 Voting 0 SI O Motions to Vacate 0 790 Other Labor Litigation 0 870 Taxes (U.S. Plaintiff 0 893 Environmental Matters 441 

0 220 Foreclosure 0 442 Employment Sentence 0 791 Empl. Ret. Inc. or Defendant) 0 894 Energy Allocation Act 

0 230 Rent Lease & Ejectment 0 443 Housing/ Habeas Corpus: Security Act 0 871 IRS-Third Party 0 895 Freedom of Information 

0 240 Torts 10 Land Accommodations 0 530 General 26 use 7609 Act 

0 245 Tort Product Liability 0 444 Welfare 0 535 Death Penalty 0 900Appeal of Fee Determination 

0 290 All Other Real Property 0 445 Amer. w/Disabilities • 0 540 Mandamus & Other Under Equal Access 

Employment 0 550 Civil Rights to Justice 

0 446 Amer. w/Disabilities • 0 555 Prison Condition 0 950 Constitutionality of 

Other State Stallltes 

0 440 Other Civil Rights 

V. ORIGIN Appeal to District (Place an "X" in One Box Only) 

I O 2 

gJ Original Removed  3 from Remanded from  Judge or  from from 4 0 Transferred 5 O 6 Reinstated another district Multidistrict 7 Magistrate 

Proceed in State Court A ellate Court Reo ened s ec1 Liti ation Jud ment 

Brief description of cause: · Petition tor an Order to Enforce a Civil Investigative Demand 

VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND$ CHECK YES only if demanded in complaint: 

COMPLAINT: UNDER F.R.C.P. 23 JURY DEMAND: 0 Yes l2J No 

VIII. RELATED CASE(S) 

IFANY (See instructions): JUDGE DOCKET NUMBER 

DATE 

08/24/2010 

FOR OFFICE USE ONLY 

RECEIPT# AMOUNT APPL YING IFP JUDGE MAG. JUDGE 

----------

Case 3:10-cv-01768-WQH -BLM Document 1 Filed 08/24/10 Page 8 of 8 
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, ... ·' i p-· .. :r•~ 

i. ic._ '.-::. f) RUTHANNE M. DEUTSCH 

Attorney 

Federal Trade Commission 

600 Pennsylvania Ave., N.W. 

Washington, D.C. 20580 

Telephone: (202) 326-3677 

Facsimile: (202) 326-2477 

Email: rdeutsch@ftc.gov 

LAURA E. DUFFY 

United States Attorney 

RA VEN M. NORRIS (Local Cou

Assistant U.S. Attorney 

State of California Bar No. 23286

Office of the U.S. Attorney 

880 Front Street, Room 6293 

San Diego, CA 92101-8893 

Telephone: (619) 557-7157 

Facsimile: ( 619) 557 .;5004 

email: Raven.Norris@usdoj.gov 

. 2UJO AUG 24 PH 12: 12 

nsel) 

8 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF CALIFORNIA 

FEDERAL TRADE COMMISSION, 

600 Pennsylvania A venue, NW t 

Washington, DC 20580 

Petitioner, 

V. 

RESPONSE MAKERS, LLC, 

11230 So~ento Valley Road, Suite 100 

San Diego, California 92121 

Respondent. 

______________

) 

) / 

) 

'1 ~ CV 17 6 8 WQH 

) 

) Case No. 

) 

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) __ ) 

MEMORANDUM IN SUPPORT OF PETITION OF THE 

· FEDERAL TRADE COMMISSION FOR AN ORDER TO ENFORCE

CIVIL INVESTIGATIVE DEMAND 

BLM 

l. ·1 

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 1 of 34 
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Petitioner, the Federal Trade Commission ("FTC" or "Commission"), pursuant to Section 20 of 

. . 

the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 57b-1, petitions this Court for an Order 

requiring Respondent, Response Makers LLC ("Response Makers"), to comply with a civil investigative 

demand ("CID"). The Commission issued the CID in aid of a non-public investigation seeking to 

determine whether Response Makers has engaged in acts or practices in violation of, inter alia, Sections 

604(f), 607(a), 607(e)(l), and 607(e)(2) of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 

168lb(f), 1681e(a), 1681e(e)(l), or Section 5(a) of the FTC Act, 15 U.S.C. § 5(a), in connection with its 

marketing of "prescreened lists" containing, 

. inter alia, the names and contact information of consumers 

who meet certain criteria. Response Makers' absolute failure to respond to the CID greatly impedes the 

Commission's ongoing investigation. 

This proceeding is properly instituted by a petition and order to show cause (rather than by 

complaint.and summons) and is summary in nature; discovery or evidentiary hearings may be granted 

only upon a showing of exceptional circumstances. See, e.g., FTC v. Carter, 636 F.2d 781, 789 (D.C. 

Cir. 1980); FTC v. MacArthur, 532 F.2d 1135, 1141-42 (7th Cir. 1976); United States v. Litton 

Industries, Inc., 462 F.2d 14, 17 (9th Cir. 1972); see also United States v. Markwood, 48 F.3d 969, 981-

82 (6th Cir. 1995); Appeal of FTC Line of Business Report Litigation, 595 F.2d 685, 704-05 · (D.C. Cir. 

1978). Because the CID was lawfully issued, the information and documents sought are relevant to the 

Commission's investigation, and responding to the CID would not unduly burden Response Makers, the 

Court should (1) order Response Makers to show cause why it should not fully comply, and (2) 

thereafter enforce the CID. See, e.g., EPA v. Alyeska Pipeline Serv. Co., 836 F.2d 443,446 (9th Cir. 

1988). 

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JURISDICTION 

The Commission is an administrative agency of the United States, organized and existing 

pursuant to the FTC Act, 15 U.S.C. § 41 et seq. The Commission is authorized and directed by Section 

5(a) of the FTC Act, 15 U.S.C. § 45(a), to prohibit unfair methods of competition and unfair or 

deceptive acts or practices in or affecting commerce. The Commission is also authorized and directed 

by Section 62l(a)(l) of the FCRA, 15 U.S.C. § 168ls(a)(l), to use the powers and authority granted it 

by the FTC Act to enforce the requirements of the FCRA. 

The authority of the Commission to issue a CID, and the jurisdiction and venue of this Court to 

enter an order enforcing it, are conferred by Section 20(c) of the FTC Act, 15 U.S.C. § 57b-l(c), which 

empowers the Commission to issue CIDs to compel, inter a/ia, the production of documentary evidence 

and responses to written interrogatories. Sections 20(e) and (h) of the FTC Act, 15 U.S.C. §§ 57b-l(e) 

and (h), authorize the Commission to invoke the aid of the district courts to enforce a CID in any 

jurisdiction in which the recipient of a CID "resides, is found, or transacts business." They also 

authorize the Commission to seek enforcement of a CID in its own name using its own counsel. Id. 

In this case, venue and jurisdiction are proper unqer Section 20( e) because Response Makers 

transacts business, and is found, in this district. Pet. Exh. 1 , 4. 1 

STATEMENT OF FACTS· 

Response Makers is a California limited liability company, located at 11230 Sorrento Valley 

Road, Suite 100, San Diego California, 92121. Eric Rothchild is the President and Principal Owner. 

Pet. Exh. 1 , 4. In the ongoing investigation, the Commission seeks to determine, inter a/ia, whether 

Response Makers is violating Section 604(f) of the FCRA, 15 U.S.C. § 168lb(f), by obtaining consumer 

Exhibits to the Commission's Petition are referred to as "Pet. Exh." 

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reports without a permissible purpose, and 607(a) of the FCRA, 15 U.S.C. § 1681e(a), for failure to 

establish adequate compliance procedures for the handling of consumer reports. The investigation also 

seeks to determine whether Response Makers is procuring consumer reports for resale without 

disclosing the identity of the end-user of the report and the end-user's permissible purpose to the 

consumer reporting agency that furnished the consumer report, as required by Section 607 ( e )( 1) of the 

FCRA, 15 U.S.C. § 1681e(e)(l), and whether Response Makers has failed to establish and comply with 

procedures to ensure that consumer reports are resold only to .persons who have a permissible purpose, 

as required by Section 607(e)(2) of the FCRA, 15 U.S.C. § 1681e(e)(2). Finally, the Commission is 

investigating whether Response M~ers' practices are "unfair or deceptive acts or practices" in violation 

of Section 5(a) of the FTC Act,.15 U.S.C. § 45(a). Pet. Exh. 1, 6. 

On July 28, 2010, the Commission served Response Makers with the CID that is the subject of 

this proceeding. Pet. Exh. 2; Pet. Exh. 1 , 7. The CID directs the production of certain documents and 

responses to written interrogatories, with a return date of August 4, 2010. Pet. Ex. 1 ,, 7; Pet. Exh. 2.2 

The instant CID was issued pursuant to the authority of a Commission resolution dated April 15, 1999. 

Pet. Exh. 2. The 1999 resolution directed that compulsory process be used to investigate, among other 

things, "a~ts or practices in violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and/or 

Section 5 of the FTC Act, 15 U.S.C. § 45 ... relating to information ... obtained as a consumer report 

2 The Commission has been seeking to obtain information from Response Makers since 

early May 2010. That CID was mailed to the address that appeared on Response Makers' 

website. It was later returned, apparently due to a problem with the address. Pet. Exh. 1 , 8. 

After the CID was sent again, an FTC investigator was able to reach Response Makers' 

President, Eric Rothchild, and discussed the contents of the CID and Response Makers' 

compliance obligations. Subsequently, due to continuing problems with establishing the date of 

service, the Commission issued the CID that is the subject of this proceeding. But for the dates 

of issuance and service, it is identical in content to the CID that the Commission issued in May. 

Pet. Exh. 1 , 8. 

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· 

from a consumer reporting agency." Pet. Exh. 2. The CID contains twelve written interrogatory 

specifications and nine document production requests. The information sought concerns Response 

Makers' business practices with respect to the handling of prescreened consumer reports and 

compliance with the FCRA. Pet. Exh. 2. 

The return date for the responses to the CID was August 4, 2010. Pet. Exh 1, 7; Pet. Exh. 2. 

Response Makers has not objected to the CID on any ground, and has not petitioned to quash or limit the 

CID as provided in FTC Rule 2.7(d)(l), 16 C.F.R. § 2.7(d)(l). Pet. Exh. 1, 11. Nonetheless, Response 

Makers has not produced any of the information or documents required by the CID. Pet. Exh 1 , 10. 

Indeed, as of the filing date of the Commission's Petition, FTC staff has not been able to speak directly 

with Mr. Rothchild regarding the failure of Response Makers to respond to the CID. 

ARGUMENT 

I. THE SCOPE OF ISSUES CONSIDERED IN PROCEEDINGS TO ENFORCE 

COMPULSORY PROCESS IS NARROW 

Although "the court's function is 'neither minor nor ministerial,' the scope of issues which may 

be litigated in a [compulsory process] enforcement proceeding must be narrow, because of the important 

governmental interest in the expeditious investigation of possible unlawful activity." FTC v. Texaco, 

Inc., 555 F.2d 862, 872 (D.C. Cir. 1977) (en bane) (internal citation omitted). This Court's role in a 

CID enforcement proceeding is thus limited to determining whether the Commission demonstrates that: 

( 1) the investigation is within the authority of the agency; (2) the procedural requirements have been 

followed; and (3) the information sought is reasonably relevant. EEOC v. Children's Hosp. Med. Ctr., 

719 F.2d 1426, 1428 (9th Cir. 1983) (en bane), abrogated on other grounds by Gilmer v. 

Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), as recognized by Prudential Ins. Co. of Am. v. Lai, 

42 F.3d 1299, 1303 (9th Cir. 1994)). See also United States v. Morton Salt Co., 338 U.S. 632,652 

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(1950); NLRB v. Bakersfield Californian, 128 F.3d 1339, 1341 (9th Cir.1994); Alyeska Pipeline Serv. 

Co., 836 F.2d at 446.3 "As long as the evidence sought is relevant, material and there is some 

'plausible' ground for jurisdiction, or fo phrase it another way, unless jurisdiction is plainly lacking the 

court should enforce the subpoena." EEOC v. Karuk Tribe Housing Auth., 260 F.3d 1071, 1077 (9th Cir. 

2001) (internal quotation marks omitted). 

The government's burden to demonstrate that these requirements have been satisfied is a "slight 

one" and "may be satisfied by a declaration from an investigating agent." United States v. Dynavac, 

Inc., 6 F.3d 1407, 1414 (9th Cir.1993). Here, as set forth in the accompanying declaration of Katherine 

Armstrong, Pet. Exh. 1, the Commission has readily demonstrated that the requirements for enforcement 

are satisfied. 

II. THE CIVIL INVESTIGATIVE DEMAND SHOULD BE ENFORCED 

A. The Civil Investigative Demand is Within the Authority of the Commission 

The Commission's authority to issue the CID is clear. See 15 U.S.C. §§ 43, 57b-l, 1681 s(a)(l ). 

Also without . doubt is the Commission's authority to investigate acts and practices that may violate . § 

5(a) of the FTC Act. See FTC v. Invention Submission Corp., 965 F.2d 1086 (D.C. Cir. 1992); FTC v. 

3 A fourth, possible consideration for the Court is whether a recipient of process has shown 

that a subpoena or CID is unreasonable because it is overbroad or unduly burdensome. 

Bakersfield Californian, 128 F.3d at 1341. The burden for this issue would rest with Response 

Makers. Even if Response Makers had such objections, however, they could not properly be 

presented to the Court in the instant proceeding because its opportunity to seek administrative 

relief from the Commission (a predicate to seeking judicial relief) has passed. See FTC v. 

O'Connell Assocs., Inc., 828 F. Supp. 165, 168 (E.D.N.Y. 1993); Commission Rule 2.7(d)(l), 16 

C.F.R. § 2.7(d)(l) (petitions to quash or limit subpoena "shall be filed with the Secretary of the 

Commission within twenty (20) days after service of the subpoena ... , or, if the return date is 

less than twenty (20) days after service, prior to the return date."). Response Makers did not file 

a petition to quash or limit the CID within the period of time prescribed by the Commission's 

Rules. Pet. Exh. 1, , 11. 

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Ken Roberts Co., 276 F.3d 583, 586 (D.C. Cir. 2001); Carter, 636 F.2d at 787-88. The Commission's 

authorit_y to issue the CID and investigate acts or practices that may violate the FCRA is equally clear, 

and courts ordering enforcement of CIDs issued in the context of FCRA investigations have confirmed 

the agency's "plenary power to secure information bearing on authorized agency inquiries." FTC v. 

Manager, Retail Credit Co., Miami Branch Office, 515 F.2d 988, 993 (D.C. Cir. 1975); see also FTC v. 

TRW, Inc., 628 F.2d 207,211 (D.C. Cir. 1980). 

B. The Procedural Requirements were Followed 

The CID was issued pursuant to a valid Commission resolution authorizing the issuance of 

compulsory process for possible violations of the FCRA and the FTC Act. Pet. Exh. 2. The CID was 

signed by a Commissioner and was served by the Commission's Secretary, as provided in the 

Commission's Rules. See 16 C.F.R. § 2.7. The procedural requirements for the CID were, therefore, 

followed. 

C. The CID Seeks Information That is Reasonably Relevant to the 

Commission's Investigation 

The instant CID is designed to determine whether Response Makers is engaged in procuring and 

reselling prescreened lists for an impermissible purpose, in violation of Sections 604(f), 607(a) 

607(e)(l), and/or 607(e)(2) of the FCRA, 15 U.S.C. §§ 168lb(f), 168le(a), 168le(e)(l), & 168le(e)(2), 

and whether such activity might also violate Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). Pet. Exh. 1 

16. 

Plainly, the information sought by the CID is reasonably relevant to the Commission's 

investigation, as it is designed to assist the Commission in ascertaining whether "the law is being 

violated in some way and ... to determine whether or not to file a complaint." Invention Submission · 

Corp., 965 F.2d at 1090. As set forth in the accompanying declaration of the Commission's lead 

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attorney, Katherine Armstrong, the Commission, through specific interrogatories and document 

requests, seeks to ascertain whether or not Response Makers is violating the FTC Act or the FCRA with 

respect to the manner in which it obtains or sells prescreened consumer lists containing the names and 

other identifying information of consumers who, based on information maintained by consumer 

reporting agencies, meet certain criteria. Pet. Exh. 1 ,, 4, 6. 

Because the CID seeks information that is "not plainly incompetent or irrelevant to any lawful 

purpose," Casey v. FTC, 578 F.2d 793, 799 (9th Cir. 1978) (citations omitted), it should be enforced. 

See also Texaco, 555 F.2d at 874-76. 

CONCLUSION 

For all the foregoing reasons, this Court should enter an order requiring Response Makers, 

within ten calendar days of the entry of this Court's order compelling compliance, to provide complete 

responses to the CID's written interrogatories and document requests, and a sworn certificate of 

compliance in the form provided in Pet. Exh. 2. 

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Respectfully submitted, 

WILLARD K. TOM 

General Counsel 

JOHNF.DALY 

Deputy General Counsel - Litigation 

LESLIE RICE MELMAN 

Assistant General Counsel - Litigation 

RUTHANNE M. DEUTSCH 

Attorneys for Petitioner 

Federal Trade Commission 

600 Pennsylvania Ave., N.W. 

Washington, D.C. 20580 

Telephone: (202) 326-3677 

Facsimile: (202) 326-2477 

Email: rdeutsch@ftc.gov 

LOCAL COUNSEL: RA VEN M. NORRIS 

Assistant U.S. Attorney 

State of California Bar No. 232868 

Office of the U.S. Attorney 

880 Front Street, Room 6293 

San Diego, CA 92101-8893 

Telephone: (619) 557-7157 

Facsimile: (619) 557-5004 

email: Raven.Norris@usdoj.gov 

8 

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Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 10 of 34 
--- -------- ---------~~------- --

. l 

Petition 

Exhibit 1 

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DECLARATION OF KA THERINE ARMSTRONG 

Pursuant\to 28 U.S.C. § 1746, Katherine Armstrong, declares as follows: 

1. I am employed as an attorney by the Federal Trade Commission C'Commission" or 

"FTC"), Bureau of Consumer Protection, Division of Privacy and Identity Protection, Washington, 

D.C. I am the lead attorney for the Commission's investigation of Response Makers LLC ("Response 

Makers"), FTC File No. 1023000. 

2. I am authorized to execute a declaration verifying the contents of the Commission's 

Petition for an Order to Enforce Civil Investigative Demand. I have read the Petition and exhibits 

thereto (hereinafter Petition) and verify that Pet Exh. 2 through Pet. Exh. 3 (this declaration is Pet. Exh 

1) are true and correct copies of documents contained in the Commission's official files. 

( 

3. The Commission is an administrative agency of the United States, organized and 

existing pursuant to the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 41 et seq. The 

Commission is authorized and directed by Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), to prohibit 

unfair methods of competition and unfair or deceptive acts or practices in or affecting commerce. The 

Commission is likewise authorized, under Section 621(a) of the Fair Credit Reporting Act ("FCRA"), 

to seek equitable relief and monetary civil penalties necessary to prevent and deter violations of the 

FCRA, 15 U.S.C. §§1681 - 168lx. 

4. Response Makers is a California limited liability company. Eric Rothchild is the 

President and Principal Owner. Response Makers is a lead generator and is in the business of, inter 

alia, obtaining and selling "prescreened lists" containing, inter alia, the names, addresses, or telephone 

numbers of consumers who meet certain criteria, based on information maintained by consumer 

reporting agencies. Response Makers maintains its principal place of business at 11230 Sorrento 

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Valley Road, Suite 100, San Diego, California 92121. 

5. The CID that the Commission seeks to enforce was issued pursuant to the authority of a 

Commission resolution dated April 15, 1999 (attached as Pet. Exh. 2.). The Commission's 

investigatory resolution directs that compulsory process be used to investigate, among other things, 

"acts or practices in violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and/or Section 

5 of the FTC Act, 15 U.S.C. § 45 ... relating to information ... obtained as a consumer report from a 

consumer reporting agency." Pet. Exh. 2. 

6. On May 5, 2010, in the course of the investigation, the Commission issued a Civil 

Investigative Demand ("CID") directing Response Makers to respond to interrogatories and provide 

documents regarding its business processes involving the use of prescreened lists and compliance with 

the FCRA. The purpose of the investigation is to determine, inter alia, whether Response Makers is 

violating Section 604(±) of the FCRA, 15 U.S.C. § 1681 b(f), by obtaining consumer reports without a 

permissible purpose and/or Section 607(a) of the FCRA, 15 U.S.C. § 1681e(a), by failing to establish 

adequate compliance procedures for the handling of consumer reports. The investigation also seeks to 

determine whether Response Makers is procuring consumer reports for resale without disclosing the 

identity of the end-user of the report and the end-user's permissible purpose to the consumer reporting 

agency that furnished the consumer report, as required by Section 607(e)(l) of the FCRA, 15 U.S.C. § 

1681 e( e )( 1 ), and whether Response Makers has failed to establish and comply with procedures to 

ensure that consumer reports are resold only to persons who have a permissible purpose, as required by 

Section 607(e)(2) of the FCRA, 15 U.S.C. §168Je(e)(2). The Commission also seeks to determine 

whether Response Makers' business practices violate the prohibition against "unfair or deceptive acts 

or practices" in Section 5(a) of the FTC Act, 15 U.S.C. § 45(a): 

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7. The CID at issue in this proceedings was issued by the Commission on July 27, 2010, 

and directs Response Makers to submit the responsive materials by August 4, 2010. (A true and correct 

copy of the CID is attached as Pet. Exh. 2.) The July 27, 2010 CID was served on Response Makers by 

express mail, delivery receipt requested on July 28, 2010. (A true and correct copy of the receipt 

confirming delivery of the CID is attached as Pet. Exh. 3.) 

8. Weeks earlier, an FTC investigator had called Response Maker's President, Eric 

Rothchild, and had talked with him about the Commission's investigation and the Commission's 

unsuccessful efforts to serve an earlier version of the CID (issued on May 5, 2010). In that 

conversation, Mr. Rothchild stated that Response Makers would accept service of a CID at its new 

address on Sorrento Valley Road. Following that initial contact, the May 5, 2010, CID was resent, and 

FTC staff followed up with a number of attempts, all of which were unsuccessful, to reach Mr. 

Rothchild and to discuss Response Makers' compliance with the CID. Ultimately, as a result of 

difficulties in establishing _the date of service, the Commission, on July 27, 2010, resissued the CID. 

The instant CID is identical to the CID previously discussed with Mr. Rothchild, but for the date of 

issuance and return dates. 

9. On July 29, 2010, FTC staff left a_ message for Mr. Rothchild reminding him that the 

return date for the CID was August 4, 2010. On the same day, Mr. Rothchild left a message for me, 

stating that he had received the CID and that he would cooperate in the Commission's investigation. On 

August 4, 2010, after yet another unsuccessful attempt to reach Mr. Rothchild directly, an FTC staff 

attorney left a voicemail reminding Mr. Rothchild that Response Makers' responses to the CID were 

due by close of business that same day, and that, failing a response, the Bureau of Consumer Protection 

would have to ask the Commission's Office of General Counsel to institute CID enforcement 

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proceedings. 

10. Despite repeated efforts to do so, FTC staff has not been able to speak directly with Mr. 

Rothchild regarding the failure of Response Makers to respond to the CID. Furthermore, despite Mr. 

Rothchild's earlier promise to cooperate in the investigation, the Commission has not received any of 

the information and documents requested by the CID. 

11. Response Makers has not objected to the CID on any ground, and has not petitioned the 

Commission to quash or limit the CID, as provided in FTC Rule 2.7(d)(l), 16 C.F.R. § 2.7(d)(l). 

12. Response Makers' failure to comply with the CID continues to greatly impede the 

Commission's ongoing investigation. 

I declare under penalty of perjury that the foregoing is true and correct. Executed this ~ay 

of August 2010, in Washington, District of Coluμibia .. 

Katherine 

Kav~ 

Armstrong 

~~ --~ 

4 

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Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 16 of 34 
• 

Petition 

Exhibit 2 

· . (Redacted) · 

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 17 of 34 
United States of America 

Federal Trade Commission 

CIVIL INVESTIGATIVE DEMAND 

1. TO 

Response Makers. LLC 

11230 SolTenlo Valley Read 

Suite 100 

San Diego, CA 92121 

Attn: Eric Rothchlld 

This demand ls Issued pursuant to Section 20 of the Federal Trade Commission Ad., 15 U.S.C. § 57b-1, in the course 

of an investigation to determine whether there ls, has been, or may be a violation of any laws administered by the 

Federal Trade Commission by conduct, actMties or proposed action as described in Item 3. 

2. 

r. 

ACTION REQUIRED 

You are required to appear and testify. 

LOCATION OF HEARING YOUR APPEARANCE WILL BE BEFORE 

DATE AND TIME OF HEARING OR DEPOSITION 

00 You are required to produce all documents described In the attached schedule that are in your possession, custody, or · ·• control, and to make them available at your address indicated above for inspection and copying or reproduction at the 

date and time specified below. 

lg! You are required to answer the Interrogatories or provide the written report described on the attached schedule. 

Answer each Interrogatory or report separately and fully In writing. Submit your answers or report to the Records 

Custodian named In Item 4 on or before the date specified below. 

DA TE AND TIME THE DOCUMENTS MUST BE AVAILABLE 

August4,2010 

3. SUBJECT OF INVESTIGATION 

See attached resolution. 

4. RECORDS CUSTODIAN/DEPUTY RECORDS CUSTODIAN 5. COMMISSION COUNSEL 

Kathaflne Armstrong/Amanda Kouloustas Katherine Armstrong 

Federal 7rade COmmlulon Feder&/ 7/'Bde CommlssJon 

601 New Jersey Avenue NW (Stop NJ 8122) 601 New Jersey Avenue NW (Stop NJ 8122) 

Washington, DC 20580 (202-326-3250) Washington, CC 20580 (202-328-32110) 

DATE ISSUED COMMISSIONER'S SIGNATURE 

July 27, 2010 

INSTRUCTIONS AND NOTIC YOUR RIGHTS TO REGULATORY ENFORCEMENT FAIRNESS 

The dellve!y of this damaid to you by any method l)l'BSC:llbad by Iha Cornmlsaion'a The FTC has a longstanding c:omrnltmant to a fair regulatory enfOrcamllnl 

Rules of Practice la legal serilca and may subject you to a penalty Imposed by law for envflonmenL If yau are a amall bullln8a8 (under Small Buulnus Admlnlslrallon 

falure to comply. The production or documents or the subrrisalon of answers and standards), you have a rtgh1 to contad the Small Business Administration's National 

report In response to this demand must be made under a sworn ceitillcata. In the form Ombudsman at 1~EGFAIR (1-B811-734-3247) orwww.sba.gov/ombudsman 

printed on the secand page of this demand, by the pBIIIOII to wham this demand Is regarding the falmeu of the compllanoe and enlorc:ement acllvltle8 of the agenc:y. 

directed or, if not a natural person, by a person or parsons having knowledge of the You should undaratand, hcwmer, that the National Omlludamen cannot change, atop, 

facl8 end dn:wnstancea of such production or reaponalbla for answering each or delay a fedenil agency enforcement action. 

Interrogatory or report question. Thls demand does not require approval by 0MB 

under the Paperwork Reduction Ad of 1980. The FTC strictly forbids retaflalo,y eels by its employees, and you wUI not be 

penallzed for axpreaalng a 0QllCelll about these acllvltlea. PETITION TO LIMIT OR QUASH TRAVEL EXPENSES The Commission's Rules of Praclic:e require that arr, putitlon to ffmll or quash this 

demand be flied within 20 daya efler &BNice. or. if Iha rolurn data la lass than 20 day8 Usa the endoBed lnMll vouchet: to dalm compensation to which 1JOU are entllled as 

after servloa, prior to the retum dale. The original and twelve ooples of the petillOn a wilneae ro, the Commlasion. The oompleted lravel voucher and this demand 

must be filed wilh the Secretary of the Federal Trade Commission, and one copy should be prasenled to Commiaslon COunsel ror payment. tr you are parmanenlly 

should be sent to Iha Oommiasion Counsel named In Item 6. or temporarily living somewhele other than the addresa on 1111& demand and it W0Uld 

require excessive lnMII lor you to appear. you fflll1l1 get prtor approval from 

Corrmisslon Counsal. 

FTC FoITn 144 (l'llV 2/08) 

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 18 of 34 
Form of Certificate of Compliance* 

I/We do certify that all of the documents and information required by the attached CiVil Investigative Demand 

which are in the possession, custody, control, or knowledge of the person to whom the demand is directed 

have been submitted to a custodian named herein. 

If a document responsive to this Civil Investigative Demand has not been submitted, the objections to Its 

submission and the reasons for the objection have been stated. 

If an Interrogatory or a portion of the request has not been fully answered or a portion of the report has not 

been completed, the objections to such interrogatory or uncompleted portion and the reasons for the 

objections have been stated. 

Signature 

TIiie 

Swom to before me this day 

NoCary Public 

•tn the event thet more than one person Is responsible for complying with this demand, the certificate shall identify the 

documents for which each cenifylng Individual was responsible. In place of a swom statement, the above certillcate of 

compllance may be supported by an unswom declaration as provided for by 28 U.S.C. § 1746. 

FTC Form 1~Back (rev. 2/08) 

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 19 of 34 
UNITED STATD OJ' AMERICA . 

BEFORE l'EDERAL TRADE COMMIS$1ON 

COMMISSIONERS: 

Robert Pito&ky, Chairman 

Sheila F. Anthony 

.Mozelle w. Thompson 

0mm SwfadJe . 

RF.SOLtmON DIRECTING USE OP COMPULSORY PROCESS IN NONPlJBLIC 

JNVESTIGATION INTO TBB ACl'S AND PRACI:ICl'.S 01 UNNAMED PERSONS. 

PAI\TNERSIDPS AND CORPORA'ffl)NS ENGAGED IN ACTS Oil PRAcnas iN 

VIOLATION 01' 15 UAC. § 1681 ET SEQ. AND/OR 15 U.S.C. § 45 

Filo No. 99'2•3120 

Nature and Scope of Investigation: 

An investigation tu determJno whether persons, partnerships or corporations may be 

eupging in, or~ have engaged in, acts or practices in violation of 1he Fair Ciedit Reporting 

Act, ts U.S.C. § 168t'atma-, and/or Section S of tho Federal Trade Commluion Act, 1S U.S.C. 

§ 45, as amended, re1aling to infQDll81fon fin:nisbed tQ CODSUJDel' reportmg agencies, maintained 

in the files of consumer reporting apnciea, or obtaim:cl as a consmncr report 1iom a consumer 

repoitiag agency. Such investigation sball, in addition, determine whether Commission action to 

obtain iedress of injury to CODSUIIUSD m othm would bo in the public interest. 

Tho Federal Trade Commfsmon hereby resolves•and.di:rects that any and all compulsoJy 

p,ocesses available tu it bo used in comecdon with this .investigation. · 

Authority to Conduct Investiptio.a: 

Sectioas 6, 9, 10, and 20 of the Pedaal T.rade Commission A~ 1 S U.S.C. § § 46, 49, SO 

and S7b-1, as amended; FTC Procedures and 1iules of Practices 16 C.F.R. 1.1 msg. and 

suppJemmta thereto. 

Title VI of'tbe Consumer Credit Protection Act. Section 621, 15 USCA § 1681s. 

By direction of the Commission. 

~.~--

Donald S. Clark 

Secmary Dated: April 15, 1999 

---------·-

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 20 of 34 
Civil Investigative Demand 

Schedule for 

Documentary Material and Written Interrogatories 

To: Response Makers, LLC 

11230 Sorrento Valley Road 

Suite 100 

San Diego, CA 92121 

Attn: Eric Rothchild 

I. DEFINITIONS 

As used in this Civil Investigative Demand ("CID"), the following definitions shall apply: 

A. "And," as well as "or," shall be construed both conjwictively and disjunctively, as 

necessary, in order to bring within the scope of any specification in the Schedule all information 

that otherwise might be construed to be outside the scope of the specification. 

B. "Any" shall be construed to include "all," and "all" shall be construed to include the 

word "any:" 

C. "CID" shall mean this Civil Investigative Demand, the attached Resolution and the 

accompanying Schedule, including the Definitions, Instructions, and Specifications .. 

which is believed to be 

E. "Document'' shall mean the complete original and any non-identical copy (whether 

different from the original because of notations on the copy or otherwise), regardless of origin or 

location, of any written, typed, printed, transcribed, taped, recorded, filmed, punched, computerstored, or graphic matter of every type and description, however and by whomever prepared, 

produced, disseminated or made, including but not limited to any advertisement, book, pamphlet, 

periodical, contract, correspondence, tlle, invoice, memorandum, note, telegram, report, record, 

handwritten note, working paper; routing slip, chart, graph, paper, index, map, tabulation; 

manual, guide, outline, script, abstract, history, calendar, diary, agenda, minute, code book, 

electronic mail, and computer material (including print-outs, cards, magnetic or electronic tapes, 

discs and such codes or instructions as will transform such computer materials into easily 

understandable fonn). 

F. "Each" shall be construed to include "every," and "every" shall be construed to include 

"each." 

G. -shall mean-its wholly or partially owned subsidiaries, parent 

companies, unincorporated divisions, joint ventures, partnerships, operations under assumed 

names, predecessors, affiliates, and all directors, officers, partners, employees, agents, 

consultants, franchisees, independent distri:J>utors, and any other person or entity, working for or 

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 21 of 34 
on behalf of the foregoing. 

H. "Fair Credit Reporting Act" or "FCRA" shall mean the statute found at 15 U.S.C. § 

1681 et. seq. 

I. "FTC" or "Commission" shall mean the Federal Trade Commission. 

J. "Identify" or "the identity of' shall be construed to require identification of (a) natural 

persons by name, title, present business affiliation, present business address and telephone 

number, or if a present business affiliation or present business address is not known, the last 

known business and home addresses; and (b) businesses or other organizations by name, address, 

identities of natural persons who are officers, directors or managers of the business or 

organization, and contact persons, where applicable. 

K. "Prescreeniog" or "prescreened list" shall refer to the process and the resulting lists 

covered by Section 603(1), 604(c), 604(e), and 61 S(d) of the FCRA. 

L. "Referring to" or "relating to" shall mean discussing, describing, reflecting, containing, 

analyzing, studying, reporting, commenting, evidencing, constituting, setting forth, considering, 

recommending, concerning, or pertaining to, in whole or in part. 

M. "Response Makers" shall mean Response Makers, LLC, its wholly or partially owned 

subsidiaries, unincorporated divisions, joint ventures, operations under assumed names, and 

affiliates, and all directors, officers, employees, agents, consultants, and other persons working 

for or on behalf of the foregoing. 

N. "You" and "Your" shall mean the person or entity to whom this CID is issued. 

II. INSTRUCTIONS 

A. Sharing of Information: The Commission often makes its files available to other civil 

and criminal federal, state, local, or foreign law enforcement agencies. The Commission may 

make information supplied by you available to such agencies where appropriate pursuant to the 

Federal Trade Commission Act and 16 C.F.R. § 4.11 (c) and (j). Infonnation you provide may 

be used in any federal, state, or foreign civil or criminal proceeding by the Commission or other 

agencies. 

B. Applicable time period: Unless otherwise directed in the specifications, the applicable 

time period for the request shall be from January 1, 2008 until the date of full and complete 

compliance with this CID. 

C. Claims of Privilege: If any material called for by this CID is withheld based on a claim 

of privilege or any similar claim, the claim must be asserted no later than the return date of this 

CID. In addition, pursuant to 16 C.F.R. § 2.8A(a), submit, together with the claim, a schedule of 

the items withheld, stating individually as to each item: 

2 

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 22 of 34 
1. the type, specific subject matter, and date of the item; 

2. the names, addresses, positions, and organizations of all authors and recipients of 

the item; and 

3. the specific grounds for claiming that the item is privileged. 

If only some portion of any responsive material is privileged, all non-privileged portions of the 

material must be submitted. A petition to limit or quash this CID shall not be filed solely for the 

purpose of asserting a claim of privilege. 16 C.F.R. § 2.SA(b). 

0. Document Retention: You shall retain all documentary materials used in the 

preparation of responses to the specifications of this CID. The Commission may require the 

submission of additional documents at a later time during this investigation. Accordingly, you 

should sus.pend any routine procedures for document destruction and talce other measures to 

prevent the destruction of documents that are in any way relevant to this investigation during its 

pendency, irrespective of whether you believe such documents are protected from discovery by 

privilege or otherwise. See 15 U.S.C. § 50;see also 18 U.S.C. §§ 1505, l5l9. 

E. Petitions to Limit or Quash: Any petition to limit or quash this CID must be filed with 

the Secretary of the Commission no later than twenty (20) days after service of the CID, or, if 

the return date is less than twenty (20) days after service, prior to the return date. Such petition 

shall set forth all assertions of privilege or other factual and legal objections to the CID, 

including all appropriate arguments, affidavits, and other supporting documentation. 16 C.F.R. § 

2.7(d). 

F. Modification of Specifications: If you believe that the scope of the required search or 

response for any specification can be narrowed consistent with the Commission's need for 

documents or infonnation, you are encouraged to discuss such possible modifications, including 

any modifications of definitions and instructions, with Katherine Armstrong at 202.326.3250. 

All such modifications must be agreed to in writing. 16.C.F.R. § 2.7(c). 

G. Certification: A duly authorized manager of Response Makers shall certify that the 

response to this CID is complete: This certification shall be made in the fonn set out on the back 

of tlie CID fonn, or by a declaration under penalty of perjury as provided by 28 U.S.C. § 1746. 

H. Scope of Search: This CID covers documents and infonnation in your possession or 

under your actual or constructive custody or control including, but not limited to, documents in 

the possession, custody, or control of your attorneys, accountants, directors, officers, and 

employees, whether or not such documents were received from or disseminated to any person or 

entity. 

L Document Production: You shall produce the docwnentary material by making all 

responsive documents available for inspection and copying at your principal place of business. 

Alternatively, you may elect to send all responsive documents to Katherine Annstrong, Division 

3 

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 23 of 34 
-------------------------------------------------------

of Privacy and Identity Protection, Federal Trade Commission, 601 New Jersey Avenue N.W. 

(Stop NJ 8122) Washington, DC 20580. Because postal delivery to the Commission is subject to 

delay due to heightened secwity precautions, please use a cowier service such as Federal 

Ex.press or UPS. Notice of your intended method of production shall be given by mail or 

telephone to Katherine Armstrong, at 202.326.3250, atleast five days prior to the return date. 

J. Document Identification: Documents that may be responsive to more than one · 

specification of this CID need not be submitted more than once; however, your response should 

indicate, for each document submitted, each specification to which the document is responsive. 

If any documents responsive to this CID have been previously supplied to the Commission, you 

may comply with this CID by identifying the document(s) previously provided and the date of 

submission. In addition, number by page all documents in your submission and indicate the total · 

number of documents in your submission. 

K. Production of Copies: Unless otherwise stated, legible photocopies may be submitted 

in lieu of original documents, provided that the originals are retained in their state at the time of 

receipt of this CID. Further, copies of original documents may be submitted in lieu of originals 

only if they are true, correct, and complete copies of the original documents; provided, however; 

that submission of a copy shall constitute a waiver of any claim as to the authenticity of the copy 

should it be necessary to introduce such copy into evidence in any C!)mmission proceeding or 

court of law; and provided further that you shall retain the original documents and produce them 

to Commission staff upon request. "' 

L. Submission of Electronically Stored Information ("ESI''): The following guidelines 

refer to any ESI You submit. But, before submitting any ESI, You must confirm with the FTC 

that the proposed formats and media types that contain: such ESI will be acceptable to the 

government. 

(I) Magnetic and other electronic media types accepted 

(a) CD-R CD-ROMs formatted to ISO 9660 specifications. 

(b) · · DVD-ROM.for Windows-compatible personal computers. 

(c) IDE and EIDE hard disk drives, formatted in Microsoft Windowscompatible, uncompressed data. 

Note: Other types of tape media used for archival, backup or other purposes such 

as 4mm & 8mm DAT and other cassette, mini-cartridge, cartridge, and 

DAT/helical scan tapes, DLT or other types of media will be accepted only with 

prior approval. 

(2) File and record formats 

(a) E=!ru!il: The FTC accepts MS Outlook PST files, MS Outlook MSG files, 

4 

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 24 of 34 
and Lotus Notes NSF files. Any other electronic submission of email 

accepted only with prior am,rovaL 

(b) Scanned Documents: Image submissions accepted with the understanding 

that unreadable images will be resubmitted in original, hard copy fonnat 

in a timely manner. Scanned Documents must adhere to the following 

specifications: 

(1) All images must be multi-page, 300 DPI - Group IV TIFF files 

named for the beginning bates number. 

(ii) If tlie full text of the Document is available; that should be 

provided as well. The text should be provided in one file for the 

entire Document or email, named the same as the first TIFF tile of 

the Document with a •. TXT extension. 

Note: Single-page, 300 DPI - Group IV TIFF files may be submitted ~ 

prior 39proyal if accompanied by an acceptable load file such as a 

Summation or Concordance image load file which denotes the appropriate 

information to allow the loading of the images into a Document 

management system with all Document breaks (document delimitation) 

preserved. OCR accompanying single-page TIFF submissions should be 

. located in the same folder and named the same as the corresponding TIFF 

page it was extracted from, with a •.TXT extension. 

(c) Other ESI files: The FTC accepts word processing Documents in ASCII 

text, WordPerfect version X3 or earlier, or Microsoft Word 2003 version 

or earlier. Spreadsheets should be in M~ Excel 2003 (• .xls) version or 

earlier. Database files should be in MS Access 2003 or earlier. 

PowerPoint presentations may be submitted in MS PowerPoint 2003 or 

earlier. Other prnprietazy fonnats for PC files should.not be submitted 

without prior aimroval. Files may be submitted using the compressed ZIP 

format to reduce size and ease portability. Adobe Acrobat PDF (* .pdf) 

may be submitted where the normal business practice storage method is 

PDF. 

Hok: Database files may also be submitted with prior approval as delimited 

ASCil text files, with field names as the flISt record, or as fixed-length flat files 

with appropriate record layout For ASCII text files, field-level documentation 

should also be provided and care taken so that delimiters and quote characters do 

not appear in the data. The FTC may require a sample of the data to be sent for 

testing. 

(3) Security 

5 

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 25 of 34 
(a) All submissions of ESI to the FTC must be free of computer viruses. Inaddition, any passwords protecting Documents or tiles must be removed 

or provided to the FTC. 

(b) Magnetic media shall be carefully packed to avoid damage and must be 

clearly marked on the outside of the shipping container: 

MAGNETIC MEDIA- DO NOT X-RAY 

MAY BE OPENED FOR POST AL INSPECTION. 

M. Sensitive Personally Identifiable Information: If any material called for by these 

requests contains sensitive personally identifiable information or sensitive health 

information of any individual, please contact us before sending those materials to discuss 

ways to protect such information during production. If that information will not be 

redacted, contact us to discuss encrypting any electronic copies of such material with 

encryption software such as SecureZip and provide the encryption key in a separate 

communication. 

For purposes of these requests, sensitive personally identifiable information includes: an 

individual's Social Security number alone; or an individual's name or address or phone 

number in combination with one or more of the following: date of birth, Social Security 

number, driver's license number or other state identification number, or a foreign country 

equivalent, passport number, financial account number, credit card number, or debit card 

number. Sensitive health information includes medical records and other individually 

identifiable health information relating to the past, present, or future physical or mental 

health or conditions of an individual, the provision of health care to an individual, or the 

past, present, or future payment for the provision of health care to an individual. 

N. Information Identification: Each specification and sub-specification of this CID shall 

be answered separately and fully in writing under oath. All information submitted shall 

be clearly and precisely identified as to the specification(s) or subspecification(s) to 

which it is responsive. 

0. Certification of Records of Regularly Conducted Activity: A Certification of Records 

of Regularly Conducted Activity is attached. While Response Makers is not legally 

obligated to complete this certification, it will aid in establishing the admissibility of the 

documents as evidence, if necessary, and may reduce the need to subpoena Response 

Makers to testify at future proceedings. 

m. SPECIFICATIONS 

A. Interrogatories 

I. State Response Makers' complete legal name, its principal place of business, its 

corporate mailing address, the date and state of incorporation, and all other names 

6 

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 26 of 34 
under which it has done or does business. 

2. Describe Response Makers' corporate structure, and state the names of all 

parents, subsidiaries (whether wholly or partially owned), divisions (whether 

incorporated or not), affiliates, branches, joint ventures, franchises, operations 

under assumed names, and entities over which it exercises supervision or control. 

For each such entity, describe the nature of its relationship to Response Makers. 

3. Describe the structure, composition, duties, and powers of Response Makers' 

Board or other governing body, including the names of all members and the 

names of the companies or other organizations with which the members are 

affiliated. 

4. Describe each product and service that you provide, how it is promoted, the types 

of entities to which (or individuals to whom) you promote and provide it, 

and the method(s) by which you provide it or make it available, including 

but not limited to: 

(a) how and where you store and organize the data you collect, how requested 

data is provided to your customers, and how your customers are charged 

. for the product or .service; 

(b) a step-by-step explanation of how your customers, including but not 

limited to Deed Data, access Response Makers' services or information; 

and 

(c) the flow of data from the initial request made to Response Makers to the 

furnishing of services or information to the customer, including an 

explanation of Response Makers' respective contributions to and roles in 

the furnishing of said services or information. 

5. Identify all sources from which you obtain information on consumers for use in 

the products and services identified in your response to Interrogatory No. 4. 

6. Describe in detail your relationship with-and any other consumer 

reporting agency with which you conduct business. 

7. Describe in detail your relationship with 

8. Identify all customers to whom you provide or have provided the products and 

services identified in your response to Interrogatory No. 4; and, in each case, 

describe the nature of the business in which each is engaged. 

9. Identify the time period during which-has pr~vided ~ed lists" to 

Response Makers including "prescreened lists" provided b~through 

7 

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 27 of 34 
10. Identify the names and titles of the individuals at Response Makers who are 

responsible for ensuring compliance with the FCRA. 

11. Identify each "prescreened list" provided by-to Response Makers 

including "prescreened lists" provided either directly or through 

from January 2008 to the present, including: 

(a) The criteria used to select consumers on each list fro~ 

databases; and 

(b) A description of the information provided in each list 

12. Has Response Makers ever been the subject of any governmental or regulatory 

inquiry or private action relating to the products and services it qas sold or made 

available? If so, describe the nature and the status or outcome of any such 

inquiry or action. 

B. Documents 

1. Provide samples of promotional materials referring or relating to each of the 

products or services listed, sold or otherwise made available by Response 

Makers. 

2. 

-· 

Provide signed copies of ali contracts or other types of agreements 

and any other consumer reporting agency with which you conduct business. 

with_ 

J.. Provide signed copies of all contracts or other types of agreements with-

. 

4. Provide copies of the application fonns or agreements required to become a 

Response Makers customer, any instructions or other information about the 

application process and about your services provided to prospective customers, 

and copies of any instruction or other information given to customers regarding 

ID and password policies and procedures. 

5. Provide documents sufficient to describe Response Makers' monitoring or 

auditing of the activities of its customers, including but not limited to copies of 

all policies, standards, procedures, or guidelines for reviewing or analyzing 

customer activities and suspending or tenninatjng customer and affiliate 

accounts. 

6. Provide documents sufficient to describe the procedures implemented and steps 

taken specifically to ensure compliance with the requirements of sections 607(a) 

and (e) of the FCRA, 15 U.S.C. § 168Ie(a) and (e), to limit the furnishing of 

consumer reports to the purposes listed under section 604 of the FCRA, 15 U.S.C. 

8 

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 28 of 34 
§ 1681 b. Such documents shall include, but are not limited to: 

(a) documents sufficient to identify the name and title of the person(s) 

responsible for (i) developing, (ii) implementing, and (iii) operating on a 

day-to-day basis the specific procedures, programs, and operations 

designed to ensure compliance with sections 607(a) and (e) of the FCRA, 

to limit the furnishing of conswner reports to those with a permissible 

purpose under section 604 of the FCRA; 

(b) all written procedures to ensure compliance with the requirements of 

sections 607(a) and (e) of the FCRA, to limit the furnishing of consumer 

reports to the permissible purposes listed under section 604 of the FCRA; 

such procedures include, but are not limited to: 

(i) specific procedures implemented and all steps taken by Response 

Makers to require prospective users to whom Response Makers furnishes 

consumer reports to identify themselves, certify the purposes for which 

the information is sought. and certify that the information wiU be used for 

no other purposes; 

(ii) specific procedures implemented and all steps taken by Response 

Makers to verify the identity of new prospective users and the uses 

certified by such prospective users; 

(iii) specific procedures implemented and all steps taken by Response 

Makers as a ''person who procures a consumer report for purposes of 

reselling the report ( or any infonnation in the report)" within the meaning 

of section 607(e)(2) of the FCRA, to (1) identify the end user of each 

consumer report, and (2) obtain the ce,tifications required by sections 

607( e )(2)(A)(ii) and (iii) of the FCRA for each consumer report resold by 

Response Makers; and · 

(iv) specific procedures implemented and all steps taken by Response 

Makers as a ''person who procures a consumer report for purposes of 

reselling the report (or any infonnation in the report)" within the meaning 

of section 607( e)(2) of the FCRA, to verify (i) the identity of each end 

user, and (2) the certifications required by sections 607(e)(2)(A)(ii) and 

(iii) of the FCRA for each consumer report resold by Response Makers; 

( c) any assessments, audits, reviews, or similar steps undertaken by Response 

Makers to assess the efficacy of procedures designed and implemented to 

limit the furnishing of consumer reports to those with a pennissible 

purpose under section 604 of the FCRA, including the results of any such 

assessments or other steps;_ 

( d) any assessments, audits, reviews, or similar steps undertaken by others to 

assess the efficacy of Response Makers' procedures designed and 

9 

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 29 of 34 
implemented to limit the furnishing of consumer reports to those with a 

pennissible purpose under section 604 of the FCRA, including the results 

of any such assessments or other steps; and · 

. . 

( e) any training or other instruction given to Response Makers' employees 

regarding their obligations to ensure compliance with the requirements of 

sections 607(a) and (e) qf the FCRA, to limit the furnishing of consumer 

reports to the purposes listed under section 604 of the FCRA. 

7. All documents showing applications by Response Makers, and infonnation 

submitted in connection with the applications, to obtain "prescreened lists" from 

-and . · 

8. All documents provided to Response Makers ~y-or 

outlining or ex~ c~ the FCRA, relevant state laws, and any 

procedures of-or-relating to ''prescreening." 

9. All documents, including correspondenciiiiie e-mails records or telephone calls, and 

the results of any reviews or analysis by or Response 

Makers, that discuss or refer to compliance with the FCRA or to any standards or 

procedures relating to ''prescreening," including but not limited to detenninations 

about what constitutes a "firm offer of credit." 

10 

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 30 of 34 
CERTIFICATION OF RECORDS OF REGULARLY CONDUCTED ACTIVITY 

Pursuant to 28 U.S.C. § 1746 

1. I, __________ _, have personal knowledge of the facts set forth below 

and am competent to testify as follows: 

2. I have authority to certify the authenticity and accuracy of the records produced by 

Response Makers and attached hereto. 

3. The documents produced and attached hereto by Response Makers are originals or true 

copies of records of regularly conducted activity that: 

a) Were made at or near the time of the occurrence of the matters set forth by, or 

from information transmitted by, a person with knowledge of those matters; 

b) Were kept in the course of the regularly conducted activity of Response Makers; 

and 

c) Were made by the regularly conducted activity as a regular practice of Response 

Makers. 

I certify under penalty of perjury that the foregoing is true and correct. 

Executed on -------- 2010. 

Signature 

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 31 of 34 
Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 32 of 34 
{ 

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Petition 

\ 

Exhibit 3 

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 33 of 34 
USPS - Track & Confirm Page l of I 

!:tome I !:!!!!P. I SJg!Lln 

Track & Confirm 

Track & Confirm 

Search Results 

Label/Receipt Number: EM46 5384 005U S Track & Confirm \ ______ --...... Guaranteed Delivery Daterrime: July 28, 2010, 12:00 PM -j 

Class: Express Mail® Enter Label/Receipt Number. 

Service(s): Return Receipt 

Status: Delivered 

Your item was delivered at 10:21 AM on July 28, 2010 in SAN DIEGO, 

CA 92121. The item was signed for by C SALAS. 

Detailed Results: 

• Delivered, July 28, 2010, 10:21 am, SAN DIEGO, CA 92121 

• Arrival at Post Office, July 28, 2010, 8:57 am, SAN DIEGO, CA 92121 

• Processed through Sort Facility, July 28, 2010, 6:22 am, SAN DIEGO, CA 92186 

• Processed through Sort Facility, July 27, 2010, 5:31 pm, WASHINGTON, DC 20074 

• Acceptance, July 27, 2010, 5:00 pm, WASHINGTON, DC 20066 

Notification Options 

Track & Confirm by email 

Get current event information or updates for your item sent to you or others by email. (iio;) 

Proof of Delivery 

Verify who signed for your item by email, fax, or mail. ~ 

SJ!eMap P..fiY.Qf.iY ... .P.9.!!GY. 

;U! 

Copyright© 2010 USPS. All Rights Reserved. No FEAR Act Data FOIA • t ~,;: hfj:X:-l:'J1r.:"·: 

EEO i ·\~~ !ti·,•\'\-,;•: ·tit' ii')'.•,!. 

http:/ /trkcnfrm l .smi. usps.com/PTSintemetWeb/InterLabellnquiry .do 7/29/2010 

Case 3:10-cv-01768-WQH -BLM Document 1-1 Filed 08/24/10 Page 34 of 34