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Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 1 of 26 Page ID #:1 

BRIAN M. BOYNTON 

Principal Deputy Assistant Attorney General

E. MARTIN ESTRADA 

United States Attorney 

ARUN G. RAO 

Deputy Assistant Attorney General

AMANDA N. LISKAMM 

Director, Consumer Protection Branch

LISA K. HSIAO 

Assistant Director, Consumer Protection Branch

JAMES T. NELSON 

Senior Trial Attorney 

United States Department of Justice

Civil Division 

P.O. Box 261, Ben Franklin Station Washington, D.C. 20044 

Telephone: (202) 616-2376 

Facsimile: (202) 514-8742 

Email: James.Nelson2@usdoj.gov DAVID M. HARRIS 

Assistant United States Attorney 

Chief, Civil Division

ROSS M. CUFF 

Assistant United States Attorney 

Chief, Civil Fraud Section

California State Bar No. 275093 

Room 7516, Federal Building

300 N. Los Angeles Street Los Angeles, California 90012 T: 213.894.7388 | F: 213.894.7819 Email: ross.cuff@usdoj.gov 

Attorneys for Plaintiff United States of America 

UNITED STATES DISTRICT COURT 

CENTRAL DISTRICT OF CALIFORNIA 

United States of America, 

 Plaintiff, 

vs. 

ConsumerInfo.com, Inc., a corporation, also d/b/a Experian

Consumer Services, 

Defendant. 

No. 

COMPLAINT FOR PERMANENT 

INJUNCTION, CIVIL PENALTIES, 

AND OTHER RELIEF 
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Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 2 of 26 Page ID #:2 

Plaintiff, the United States of America, acting upon notification and 

authorization to the Attorney General by the Federal Trade Commission (“FTC”) 

pursuant to Section 16(a)(1) of the Federal Trade Commission Act (“FTC Act”), 15 

U.S.C. § 56(a)(1), for its Complaint alleges: 

1. Plaintiff brings this action under Sections 13(b), 16(a), and 19 of the 

Federal Trade Commission Act (“FTC Act”), 15 U.S.C. §§ 53(b), 56, 57b, and 

Section 7(a) of the Controlling the Assault of Non-Solicited Pornography and 

Marketing Act of 2003 (“CAN-SPAM Act”), 15 U.S.C. § 7706(a), which authorize 

Plaintiff to seek and the Court to order permanent injunctive relief, civil penalties, 

and other relief for Defendant’s acts or practices in violation of Section 5(a) of the 

FTC Act, 15 U.S.C. § 45(a), and in violation of the CAN-SPAM Act. 

SUMMARY OF CASE 

2. The federal Fair Credit Reporting Act requires Defendant to allow 

consumers to place or remove security freezes on their credit reports free of charge. 

15 U.S.C. §§ 1681c-1(i)(2)(A), 1681c-1(i)(3)(C). Defendant requires consumers 

who wish to manage their Experian credit report information—by, for example, 

freezing or unfreezing their credit—via online controls to create an account using 

an email address. An online account affords a fast and efficient manner in which to 

monitor and adjust credit activity. For consumers who create a Free Membership 

account rather than a Service Account, Defendant then sends to these consumers’ 

email addresses commercial email masquerading as messages that provide account 

updates. These emails violate CAN-SPAM by failing to provide (1) clear and 

conspicuous notice of consumers’ ability to request to opt out of receiving further 

marketing messages and (2) a mechanism for them to do so. 

JURISDICTION AND VENUE 

3. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 

§§ 1331, 1337(a), and 1345. 

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Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 3 of 26 Page ID #:3 

4. Venue is proper in this District under 28 U.S.C. §§ 1391(b)(1), (b)(2), 

(c)(2), and (d), and 15 U.S.C. § 53(b). 

DEFENDANT 

5. Defendant ConsumerInfo.com, Inc., also doing business as Experian 

Consumer Services (“ECS”), is a California corporation with its principal place of 

business at 475 Anton Boulevard, Costa Mesa, California. ECS transacts or has 

transacted business in this District and throughout the United States. 

COMMERCE 

6. At all times relevant to this Complaint, Defendant has 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. 

DEFENDANT’S BUSINESS ACTIVITIES 

I. ECS’s Consumer Business 

7. ECS shares a parent company with Experian Information Solutions, 

Inc. (“Experian”), a credit bureau. ECS maintains the website usa.experian.com. 

8. Consumers who wish to freeze or unfreeze their Experian consumer 

report online—if, for example, they have been the victim of identity theft or wish 

to apply for a home mortgage—must create an online account. ECS offers either a 

Free Membership account or a Service Account. Despite the naming convention, 

both are free to consumers. 

9. Creating either account requires consumers to provide ECS with, 

among other things, an electronic mail address. Consumers who do not create an 

account can place or remove a freeze by telephoning Experian or sending a request 

by mail. 

10. ECS uses the electronic mail addresses it obtains from consumers who 

create a Free Membership account to promote products and services by sending 

emails that include credit card offers, pitches of services to improve their credit 

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Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 4 of 26 Page ID #:4 

score, offers of discounts and savings on auto-related services and products, and 

upsells for ECS’s paid memberships, such as IdentityWorksSM Premium. 

11. Establishing a Free Membership account is a prerequisite to using 

certain services ECS offers through the website. One such service is Experian 

Boost, which asserts that it can help consumers raise their FICO credit scores on 

their Experian credit reports and avail themselves of improved credit card offers. 

12. Notwithstanding their clear promotional purpose and content, ECS 

represents that these emails: (a) are “not [ ] marketing email[s]”; (b) are sent to 

“notify [the consumer] of a recent change to [their] account”; and (c) “contain 

important information about [a consumer’s] account.” 

13. ECS sends these emails even to consumers who have specifically 

opted out of receiving emails containing “Personalized insights and offers” that 

include “tips about building credit and managing finances.” 

14. Three of Defendant’s email marketing campaigns to consumers who 

establish a Free Membership account—“Confirm your car,” “Experian Boost,” and 

“Dark Web Scan”—are described below. 

II. Confirm Your Car Emails 

15. ECS sent numerous “Confirm your car” emails to consumers in 2022. 

Consumers have received multiple emails referring to one or more vehicles or 

asking them to “[s]ign in to confirm [their] car.” 

16. An example of a “Confirm your car” email, attached hereto as Exhibit 

A and incorporated herein, comes from “Experian” at the email address 

“support@s.usa.experian.com." 

17. In this email, shown in the image from Exhibit A below, the subject 

line reads as follows: “[Name], Do you own a Ford F-150?” Below an ombre 

border is an illustration of an automobile with a question mark beside it. 

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- • Do you own a Ford F-150? ~ e 

Experian <support@s.usa.experian.com> Fri, Oct 7, 2022 at 3:20 PM 

~eplv-To: Experian <reolV-fe911172766304 7a73-14235_HTML-1281935645-7327132-153@e.usa.experian.com> 

•• ~experian. • 

Membership ID# Sign In 

•• ~experian~ 

• 

Membership ID# 

Do you own a 

2011 Ford? 

We found a 2011 Ford matching the address on your Experian 

membership. Confirm it's your car to get started with free benefits 

like insurance savings, data on your car's history, and estimated 

value. 

See details 

Sign In 

Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 5 of 26 Page ID #:5 

18. As shown in the image below, which is another iteration of the email 

in Exhibit A, the email continues by prompting consumers to click on a hyperlink 

labeled “See details.” 

Doing so prompts consumers to log in to their Experian account. 

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- Vehicle detected 

• • • Experian <support@s.usa.experian.com> •.e. To: 

•• ~experian. • 

Yahoo/Experian 

Nov 27 at 8:27 PM 

',ltfff'.bersh p ID# 

Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 6 of 26 Page ID #:6 

19. ECS has also sent numerous consumers another type of “Confirm 

your car” email with the subject line “[Name], Vehicle detected,” an example of 

which is attached hereto as Exhibit B and incorporated herein. 

20. As in the emails described above—and as shown in the image from 

Exhibit B below, the Experian logo appears in color in the upper left corner of the 

body of this email. Below an ombre border is an illustration of an automobile with 

a yellow arrow pointing to it. 

21. As shown in the image from Exhibit B below, the message then urges 

consumers to “[s]ign in to confirm your car” and purportedly alerts them to a 

“match” with a vehicle. Below this statement is a pink call-to-action button that 

states “Sign in.” 

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•• ! experian. • 

Membership ID# filllllo. 

Sign in to confirm your car 

There is a car that matches the info in your Experian membership. 

Sign in to confirm it's yours and check out free auto benefits. 

Sign in 

This email was sent because it contains important information about your account. Please note 

that if you have previously unsubscribed from Experian CreditWorks"' Basic, you will no longer 

receive newsletters or special offers. However, you will continue to receive email notifications 

regarding your account. To ensure that you'll receive emails from us, please add 

support@e.usa.experian.com to your address book. 

Privacy Policy 

© 2022 Fair Isaac Corporation. FICO is a trademark of Fair Isaac Corporation. 

© 2022 Consumerlnfo.com, Inc., an Experian• company. All rights reserved. 

P.O. Box 2390 Allen, TX, 75013, US 

••• • e . • 

Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 7 of 26 Page ID #:7 

22. Each of the “Confirm your car” emails concludes with the content 

shown in the image below: 

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Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 8 of 26 Page ID #:8 

23. Beneath hyperlinked logos of five social media platforms is the 

following: 

This email was sent because it contains important information 

about your account. Please note that if you have previously 

unsubscribed from Experian CreditWorksSM Basic, you will no 

longer receive newsletters or special offers. However, you will 

continue to receive email notifications regarding your account. 

To ensure that you’ll receive emails from us, please add 

support@e.usa.experian.com to your address book. 

24. The emails do not contain an “Unsubscribe” link. 

25. Contrary to what the emails say, they do not “contain[] important 

information about [the recipient’s] account.” Furthermore, they tell consumers who 

have already told ECS that they wish to opt out of marketing messages that ECS 

will not honor their request because the message purports to be an “email 

notification[] regarding [the recipient’s] account.” ECS even goes one step further 

and advises consumers to add the email address from which ECS sent the emails to 

the recipients’ email address book to make sure they continue to receive ECS’s 

marketing emails. 

26. The primary purpose of these emails is to promote auto-related offers 

and ECS’s commercial website. Nevertheless, the emails do not provide notice of 

consumers’ ability to opt out of receiving further promotional messages or a 

mechanism for doing so. 

27. Numerous consumers have complained about the “Confirm your car” 

emails. Among other things, consumers have stated that: (a) the emails are 

unwanted marketing emails; (b) they are unable to unsubscribe from these emails 

despite substantial efforts; (c) the vehicles referred to in the emails and on ECS’s 

website appear to be fake or are not associated with them in any way; (d) the 

vehicles listed are many years old and long paid for; (e) the vehicles listed have 

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From: 

Sent 

To: 

Subject: 

•• ~experian~ 

• 

Experia n <s upport@s.us a .expe ria n.com 

Sunday, June 5, 20 22 2:21 PM 

Instantly increase yo ur RCO Score p, 'JOU read that right!) 

lpl 

Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 9 of 26 Page ID #:9 

nothing to do with them; their identity; their credit profile, status, or history; or 

their desire to freeze or unfreeze their credit; (f) they were unable to remove the 

vehicles from their account without agreeing to share their personal information 

with third-party marketers and/or provide information about the vehicles they own 

that could be used for marketing purposes; and (g) they believed the inclusion of 

the cars on their Experian account constituted incorrect information on their credit 

record which they wanted and needed to dispute. 

III. Experian Boost Email 

28. Experian also widely advertises, including on the Internet and 

television, a service called “Experian Boost.” Consumers who wish to use 

Experian Boost must first create a Free Membership account with ECS, although 

advertisements do not disclose this requirement. 

29. Shortly after consumers sign up for a Free Membership account— 

including consumers who have signed up solely for the purpose of freezing or 

unfreezing their credit—ECS sends them an email touting Experian Boost and 

encouraging consumers to “[u]nlock offers.” One version of such an email, an 

example of which is attached hereto as Exhibit C and incorporated herein, also 

comes from “Experian” at the email address “support@s.usa.experian.com.” 

30. As shown in the image from Exhibit C below, the subject line of the 

email reads, “Instantly increase your FICO® Score (yep, you read that right!),” and 

the top of the message contains a link for a consumer to sign in to their Experian 

account. 

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Don't just check your FICO® 

Score*. Boost it! 

Now with Experian Boost, your FICO® Score can benefit from the bills you 

already pay but haven't been getting credit for. 

Boost your FICO Score> 

Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 10 of 26 Page ID #:10 

31. As shown in the image immediately below, beneath the message’s 

ombre border is a heading in large dark gray type: “Don’t just check your FICO® 

Score*. Boost it!” The message continues with a one-sentence explanation of 

Experian Boost, followed by a large purple button reading “Boost your FICO 

Score>[.]” 

Clicking on the button prompts consumers to log in to their Experian account. 

32. The email continues below the purple button with an animated 

graphic, shown immediately below, of a cell phone displaying the heading “Nice 

work!” above a credit score within a semicircle rating scores from “poor” to 

“exceptional.” On both sides of the graphic is a blue background sprinkled with an 

animated shower of confetti. 

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•• ~experian . • ~ 

. \ 

, 

• ~ 

• 

. • 

• I 

Ni 

Good 

670 • 749 

;Y 

t( 691 

AC0 L 1111more 

300 Exptriln data Aug 1 o. 2018 850 

Nice work! 

FICO L .mfflOf 

300 Expetl n da a Aug 10, 2018 850 

You got a +22 point 

Boost! 

See Boosted Card Offers 

, 

• 

• 

I 

• 

• 

• 

Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 11 of 26 Page ID #:11 

33. As shown in part immediately below, the animated graphic continues 

with “You got a +22 point Boost!” and a purple call-to-action button. 

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0 

See your fabulous, newly boosted FICO Score 

Boost your FICO Score> 

• 

What can you get with a higher credit score? 

A higher score means more control and options. For starters, 

you can gain access to better offers and lower interest rates! 

Unlock offers > 

Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 12 of 26 Page ID #:12 

34. The body of the email continues with a heading stating, “Here’s how 

it works,” followed by headers setting out three steps. 

35. As shown below, beneath these headers is a prominent purple button 

that reads “Boost your FICO Score >[.]” 

Clicking on the button takes a consumer to a webpage that prompts them to enter 

the username and password of their Experian account. 

36. The email continues, as shown in the image below, and beneath the 

button are a blue lightbulb icon and a brief explanation of what a higher credit 

score can provide. 

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This email was sent because it contains important information about your account. Please note 

that if you have previously unsubscribed from Experian CreditWorks"" Basic, you will no longer 

receive newsletters or special offers. However, you will continue to receive email notifications 

regarding your account. To ensure that you'll receive emails from us, please add 

support@e.usa.experian.com to your address book. 

Privacy Policy 

© 2022 Fair Isaac Corporation. FICO is a trademark of Fair Isaac Corporation. 

© 2022 Consumerlnfo.com, Inc., an Experian• company. All rights reserved. 

P.O. Box 2390 Allen, TX, 75013, US 

••• • e . • 

Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 13 of 26 Page ID #:13 

The following hyperlinked text “Unlock offers >” directs consumers to the same 

webpage where they must log in to their Experian account. 

37. Details about the results of using Experian Boost sit beneath the 

hyperlink. 

38. The email concludes with the content shown in the image below: 

39. Beneath hyperlinked logos of five social media platforms is the same 

small-print notice used in Exhibits A and B that states the email “contains 

important information about [the recipient’s] account.” 

40. The email does not contain an “Unsubscribe” link. 

41. As with the “Confirm your car” emails and contrary to what the email 

footer states, the email (a) does not “contain[] important information about [the 

recipient’s] account,” (b) tells consumers ECS will not honor their previously made 

opt-out requests, and (c) asks consumers to help ECS ensure its potentially 

unwanted marketing messages will continue to reach them by adding ECS’s email 

address to their email address book. 

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f rom: 

Sent: 

T o: 

Subject: 

• • • '!' expenan_ • 

Experian <s pport@s.usa .experian.com> 

Monday, June 6, 2022 2:2 1 P 1 

your Dark Web scan is available 

~ 

Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 14 of 26 Page ID #:14 

42. The primary purpose of this email is to promote Experian Boost, a 

commercial service, and ECS’s commercial website. Nevertheless, the email does 

not provide notice of consumers’ ability to opt out of receiving further promotional 

messages or a mechanism for doing so. 

43. Numerous consumers have complained that the Experian Boost emails 

were unwanted marketing from which they were unable to unsubscribe. 

IV. Dark Web Scan Email 

44. ECS also sends numerous consumers an email advertising a “Dark 

Web Scan” shortly after they create a Free Membership account. One such email, 

an example of which is attached hereto as Exhibit D and incorporated herein, 

comes from “Experian” at the email address “support@s.usa.experian.com.” 

45. As shown in the image from Exhibit D below, the subject line of the 

email reads as follows: “[Name], your Dark Web scan is available.” 

46. As shown in the image from Exhibit D below, beneath an ombre 

border is a logo showing a fingerprint and an adjacent caution sign, a heading in 

large gray type reads, “You have a free Dark Web scan available.” The message 

continues by asking, “Don’t you want to know if your info is compromised?” 

Immediately below this text sits a prominent purple button that reads “Run scan 

now >[.]” 

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You have a free Dark Web scan available 

We will scan o er 600.000 da a p ins on he Dark Web f r our SS . email add res 

and more. Don't you wan o kno v if your info is compromised? 

Run scan no·w > 

Why am I receiving this email? 

This is not a marketing email-you're receiving this message to notify you of a recent change to 

your account. If you've unsubscribed from Experian CreditWorks"' Basic emails in the past, don't 

worry-you no longer receive newsletters or special offers. 

You can update some alerts and communications preferences any time on your Experian 

CreditWorks"' Basic profile, but you'll continue to receive notifications like this one on the status 

of your account. 

To ensure that you'll stay up to date on account notifications, add support@e.usa.experian.com 

to your address book and avoid marking these messages as spam. 

Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 15 of 26 Page ID #:15 

47. As shown in the image from Exhibit D immediately below, the email 

continues with the logos of five social media services and small-print text: 

48. At the very bottom of the email, beneath the question “Why am I 

receiving this email?” sits the following text: 

This is not a marketing email—you’re receiving this message to 

notify you of a recent change to your account. If you’ve 

unsubscribed from Experian CreditWorksSM Basic emails, in the 

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Privacy Policy 

View Your Consumer Right to Obtain a Security Freeze 

© 2022 Fair Isaac Corporation. FICO• is a trademark of Fair Isaac Corporation. 

© 2022 Consumerlnfo.com, Inc., an Experian• company. All rights reserved . 

P.O. Box 2390 Allen, TX, 75013, US 

••• • e . • 

Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 16 of 26 Page ID #:16 

past, don’t worry—you no longer receive newsletters or special 

offers. 

You can update some alerts and communications preferences any 

time on your Experian CreditWorksSM Basic profile, but you’ll 

continue to receive notifications like this one on the status of 

your account. 

To ensure that you’ll stay up to date on account notifications, add 

support@e.usa.experian.com to your address book and avoid 

marking these messages as spam. 

49. Contrary to the text of the email’s footer, the message is “a marketing 

email” and was not sent to notify the recipient of a “recent change to [the 

recipient’s] account.” As with the “Confirm your car” and “Experian Boost” 

emails, the message continues by telling recipients that they cannot opt out of these 

messages because they are “notifications . . . on the status of [the recipient’s] 

account” and requests assistance in continuing to deliver these emails to their 

inboxes by adding the “from” address to their email address book. 

50. The email concludes as shown in the image from Exhibit D below. 

51. It does not contain an “Unsubscribe” link. 

52. Clicking on the purple button identified in Paragraph 46 prompts a 

consumer to enter the username and password of their Experian account. After 

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Protect your credit and identity. Try it free for 30 dayst. 

Upgrade to Experian Identity Theft Protection today. 

Upgrade your membership to include: 

v 3-Bureau Crtdlt Monitoring and AJer1s• 

v Ouiutc,ly 3·0ure6u nco• Scores 

✓ Derk Web Internet Sl.rveillllnee Alert.s 

'V Ffnanclal Accou,t Takaover Altrtc 

v Social Security Number Trace A1et1s 

v Chcnoe of Ackkcn Alc1ts 

V Coort Record, ord Boolurig Alert, 

✓ on-Crodrt. Lo:in crt, 

V Sex OU~nd@f Reglslry Alerts 

v Sodal Network Monitoring Alerts 

✓ ldenbty va•dotion Alerb 

v Expcrjyi Cu:idnl ock With A rtii 

v Up to St M1l llon Identity Theft Insurance• 

v 0edlca1ed Fraud Resolution SUpport 

✓ Lo3t WoDet A3,lstnncc 

✓ D01ty Upcnon ACO$ SeoroD 

-./ FICO Score Tracker 

Your Order Summary 

Exp•rlan ldontityWor1u:,. PremkJm $0.00 

1es tall sooo 

Total $0.00 

BIiiing Information 

@ 8 Apple Pay 

+ Add b new ciu d 

·C,edit SCOIC 1$ Cblcubled bucd on nco• Score 8 modt:I, un~ othet'WISc noted. 

In aiddrtion to tho ACOl!il Score 8, we m!'ly offer and provlclo othc!t bo:io or irdJGtryspectfic Ftco• Salres ("1ch as FICO• Auto Scores and Aco& Bankcard Scores) 

Your lender or lnsu'er may use a d1Ueren1 FICO_, Score than Fico• Score 8 or such 

other bo,e or indu,try :,pcofic. FlCOs Sc.ore (if ovoicblc), or onothcr type of credit 

acorc :attogothcr Lo.am moro. 

PAYMENT INFORMATION 

When you complete ~our orda< here, )!OU wfD begin your 3CkSay tnal memberd\.p In 

Expe1lan ldenlltyVlorks .. Premium You may canc:el your trial membership at any 

time within 30 days without charge. If yo...r decide not to ciinctl, yo ur miember:shl p 

will contW'IUO ond your crC!dit ~rd will b<! charged $19 99 pluo app cob lo solo a tllX. 

each month you continue your memb@rshlp You may cancel your membersh.p and 

stop the mon1hly billlno by con1act rg u.:. at any time. However. you wi t no1 be 

cli gi~e for II pro·mtcd refund of your currO"lt month's pn1d mcmber,hip foe. 

No, Koop My Current Momborsh1p 

Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 17 of 26 Page ID #:17 

providing that information, the consumer is brought to a screen, shown below, 

offering a negative-option trial of “Experian Identity Theft Protection.” Fine print 

near the bottom of the screen explains that the offer is for a 30-day “trial 

membership” of “Experian IdentityWorksSM Premium.” If consumers fail to cancel 

their membership before the end of the trial, they will be charged $19.99 plus sales 

tax per month until they cancel. Consumers on this page can select one of two 

buttons: a black button reading “Buy with [payment type]” or a blue button that 

says “No, Keep My Current Membership.” 

53. Clicking on the blue button brings consumers to a screen titled 

“Identity Protection,” shown below: 

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.. . ~.experian. Credit Finances Protection Credi1 Cards Loans Auto 

Identity Protection 

Your informtition is personal We con help you keep it thot way. 

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dt> 11 ty p o lf' llor1 M o n 1t rn..,C lf' II , f ,cpp11,11 0'< '11 f l+> 

Free > 0/1 1 > Unloc ked > 

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See if your personal info is exposed on the web 

Personal privacy scan shows Ir your address. phone number or olher personal Info Is 

compromised onllne and provk:Ses Insight s on wha1 to do ne)(t 

Fifi:l:i+&IHE Loam morv 

Protect your info with all we've got 

Upt,ade for ,den1tt)' monltorlr}Q across the dark '"t'b. peorle- finder site,;, accoun1s and more .,. tlh 

alt.-rl5 and tip$ on ho A 10 keep )01.11 111ro Sofe 

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Keeping your Info safe 

What Is identity monitoring? 

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WllJ' do I have ~llcate records In my privacy 

olerts? 

Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 18 of 26 Page ID #:18 

54. In a box labeled “Your alerts” is the following text: “See if your 

personal info is exposed on the web[.] Personal privacy scan shows if your address, 

phone number or other personal info is compromised online and provides insights 

on what to do next.” Beneath that text are a purple button that says, “Scan now for 

free” and a white button that says, “Learn more.” 

55. Clicking on the purple “Scan now for free” button brings up a popup, 

shown below, that requires consumers to consent to Experian’s Terms and 

Conditions and Privacy Policy, and to agree to share personal information from 

their account profile with third parties to continue. 

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Now for the legal stuff ... 

By solecbng tho button below, you ogroe to Exporlans Terms 

of Use and Pr acy Policy ond authorize Experian to send your 

personal information from your account profile to ils sei.i~ 

p1ovide1( ). including BrandYou, elf com. Inc. who will store 

your information and u e it to initiate a free one·t1me scan on 

the cov?red sites. 

Continue 

Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 19 of 26 Page ID #:19 

56. The primary purpose of this email is to promote Experian’s Dark Web 

Scan, a commercial service, and ECS’s commercial website. Nevertheless, the 

email does not provide notice of consumers’ ability to opt out of receiving further 

promotional messages or a mechanism for doing so. 

57. Numerous consumers have complained that the Dark Web Scan 

emails were unwanted marketing from which they were unable to unsubscribe. 

V. Consumers’ Communication Preferences 

58. As shown in the image below, on an Experian account page entitled 

“Communication preferences,” consumers are able to opt in or out of receiving 

emails containing “Personalized insights and offers” that included “tips about 

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Your account 

na y acco..n nfo. 90 dm 

Account Inform •ion Connected ecounts CcmmunIeation preferene $ M beishlp del s 

Credit alerts 0 

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Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 20 of 26 Page ID #:20 

building credit and managing finances.” Many consumers have complained that 

they opted out of such communications but continued to receive marketing emails 

like those referenced above, in contravention of their stated preferences. 

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Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 21 of 26 Page ID #:21 

59. Based on the facts and violations of law alleged in this Complaint, 

Plaintiff has reason to believe that Defendant is violating or is about to violate laws 

enforced by the Commission. 

VIOLATIONS OF THE CAN-SPAM ACT 

60. The CAN-SPAM Act became effective on January 1, 2004. 

61. Section 5(a)(3)(A) of the CAN-SPAM Act states: 

It is unlawful for any person to initiate the transmission to a 

protected computer of a commercial electronic mail message that 

does not contain a functioning return electronic mail address or 

other Internet-based mechanism, clearly and conspicuously 

displayed that— 

(i) a recipient may use to submit, in a manner specified in the 

message, a reply electronic mail message or other form of 

Internet-based communication requesting not to receive future 

commercial electronic mail messages from that sender at the 

electronic mail address where the message was received; and 

(ii) remains capable of receiving such messages or 

communications for no less than 30 days after the transmission 

of the original message. 

15 U.S.C. § 7704(a)(3)(A). 

62. Section 5(a)(5)(A)(ii) states: “It is unlawful for any person to initiate 

the transmission of any commercial electronic mail message to a protected 

computer unless the message provides—. . . (ii) clear and conspicuous notice of the 

opportunity under paragraph (3) to decline to receive further commercial electronic 

mail messages from the sender . . . .” 15 U.S.C. § 7704(a)(5)(A)(ii). 

63. A “commercial electronic mail message” is “any electronic mail 

message the primary purpose of which is the commercial advertisement or 

promotion of a commercial product or service (including content on an Internet 

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Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 22 of 26 Page ID #:22 

website operated for a commercial purpose).” 15 U.S.C. § 7702(2)(A). “The term 

‘commercial electronic mail message’ does not include a transactional or 

relationship message.” 15 U.S.C. § 7702(2)(B). 

64. A “transactional or relationship message” is: 

an electronic mail message the primary purpose of which is— 

(i) to facilitate, complete, or confirm a commercial transaction 

that the recipient has previously agreed to enter into with the 

sender; 

(ii) to provide warranty information, product recall information, 

or safety or security information with respect to a commercial 

product or service used or purchased by the recipient; 

(iii) to provide— 

(I) notification concerning a change in the terms or features 

of; 

(II) notification of a change in the recipient’s standing or 

status with respect to; or 

(III) at regular periodic intervals, account balance information 

or other type of account statement with respect to 

a subscription, membership, account, loan, or comparable 

ongoing commercial relationship involving the ongoing 

purchase or use by the recipient of products or services offered 

by the sender; 

(iv) to provide information directly related to an employment 

relationship or benefit plan in which the recipient is currently 

involved, participating, or enrolled; or 

(v) to deliver goods or services, including product updates or 

upgrades, that the recipient is entitled to receive under the terms 

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Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 23 of 26 Page ID #:23 

of a transaction that the recipient has previously agreed to enter 

into with the sender. 

15 U.S.C. § 7702(17)(A). 

65. In 2005, pursuant to the CAN-SPAM Act’s grant of authority, the 

Commission issued rule provisions that define the relevant criteria for determining 

the “primary purpose” of an electronic mail message. That rule states that the 

primary purpose of an electronic mail message is commercial in the following 

circumstances: 

(1) If an electronic mail message consists exclusively of the 

commercial advertisement or promotion of a commercial product 

or service, then the “primary purpose” of the message shall be 

deemed to be commercial. 

(2) If an electronic mail message contains both the commercial 

advertisement or promotion of a commercial product or service 

as well as transactional or relationship content as set forth in 

paragraph (c) of [Section 316.3], then the “primary purpose” of 

the message shall be deemed to be commercial if: 

(i) A recipient reasonably interpreting the subject line of the 

electronic mail message would likely conclude that the 

message contains the commercial advertisement or promotion 

of a commercial product or service; or 

(ii) the electronic mail message’s transactional or relationship 

content as set forth in paragraph (c) of [Section 316.3] does 

not appear, in whole or in substantial part, at the beginning of 

the body of the message. 

(3) If an electronic mail message contains both the commercial 

advertisement or promotion of a commercial product or service 

as well as other content that is not transactional or relationship 

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Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 24 of 26 Page ID #:24 

content as set forth in paragraph (c) of [Section 316.3], then the 

“primary purpose” of the message shall be deemed to be 

commercial if: 

(i) A recipient reasonably interpreting the subject line of the 

electronic mail message would likely conclude that the 

message contains the commercial advertisement or promotion 

of a commercial product or service; or 

(ii) A recipient reasonably interpreting the body of the 

message would likely conclude that the primary purpose of 

the message is the commercial advertisement or promotion of 

a commercial product or service. Factors illustrative of those 

relevant to this interpretation include the placement of content 

that is the commercial advertisement or promotion of a 

commercial product or service, in whole or in substantial part, 

at the beginning of the body of the message; the proportion of 

the message dedicated to such content; and how color, 

graphics, type size, and style are used to highlight commercial 

content. 

16 C.F.R. § 316.3(a)(1)–(3) (emphasis in original). 

66. Pursuant to Section 7(a) of the CAN-SPAM Act, 15 U.S.C. § 7706(a), 

and Section 18(a)(1)(B) of the FTC Act, 15 U.S.C. § 57a(a)(1)(B), a violation of 

the CAN-SPAM Act 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). 

COUNT I 

Failure to Provide Opt-Out Mechanism 

67. In numerous instances, Defendant has initiated the transmission to 

protected computers of commercial electronic mail messages that did not contain a 

functioning return electronic mail address or other Internet-based mechanism, 

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Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 25 of 26 Page ID #:25 

clearly and conspicuously displayed, that a recipient may use to submit a request 

not to receive future commercial electronic mail messages from that sender at the 

electronic mail address where the message was received. 

68. Therefore, Defendant’s acts or practices as set forth in Paragraph 67 

violate Section 5(a)(3)(A) of the CAN-SPAM Act, 15 U.S.C. § 7704(a)(3)(A). 

69. Defendant’s violations of Section 5(a)(3)(A) of the CAN-SPAM Act, 

15 U.S.C. § 7704(a)(3)(A), were committed with the knowledge required by 

Section 5(m)(1)(A) of the FTC Act, 15 U.S.C. § 45(m)(1)(A). 

COUNT II 

Failure to Provide Notice of Opt-Out 

70. In numerous instances, Defendant has initiated the transmission to 

protected computers of commercial electronic mail messages that did not contain 

clear and conspicuous notice of the opportunity under 15 U.S.C. 

§ 7704(a)(5)(A)(ii) to decline to receive further commercial electronic mail 

messages from the sender. 

71. Therefore, Defendant’s acts or practices as set forth in Paragraph 70 

violate Section 5(a)(5)(A)(ii) of the CAN-SPAM Act, 15 U.S.C. 

§ 7704(a)(5)(A)(ii). 

72. Defendant’s violations of Section 5(a)(5)(A)(ii) of the CAN-SPAM 

Act, 15 U.S.C. § 7704(a)(5)(A)(ii), were committed with the knowledge required 

by Section 5(m)(1)(A) of the FTC Act, 15 U.S.C. § 45(m)(1)(A). 

CONSUMER INJURY 

73. Consumers have suffered and will continue to suffer substantial injury 

as a result of Defendant’s violations of the CAN-SPAM Act and the FTC Act. 

Absent injunctive relief by this Court, Defendant is likely to continue to injure 

consumers and harm the public interest. 

PRAYER FOR RELIEF 

Wherefore, Plaintiff requests that the Court: 

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Case 8:23-cv-01494 Document 1 Filed 08/14/23 Page 26 of 26 Page ID #:26 

A. Enter a permanent injunction to prevent future violations of the CANSPAM Act and the FTC Act by Defendant; 

B. Award Plaintiff monetary civil penalties from Defendant for every 

violation of the CAN-SPAM Act; and 

C. Award any additional relief as the Court determines to be just and 

proper. 

Dated: August 14, 2023 

Of Counsel: 

FRANCES L. KERN 

ELSIE B. KAPPLER 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

(202) 326-2391/fkern@ftc.gov 

(202) 326-2466/ekappler@ftc.gov 

Respectfully Submitted, 

 BRIAN M. BOYNTON 

Principal Deputy Assistant Attorney General

E. MARTIN ESTRADA 

United States Attorney 

ARUN G. RAO 

Deputy Assistant Attorney General

AMANDA N. LISKAMM 

Director, Consumer Protection Branch

LISA K. HSIAO 

Assistant Director, 

Consumer Protection Branch

 United States Department of Justice Civil Division 

 DAVID M. HARRIS, AUSA Chief, Civil Division

ROSS M. CUFF, AUSA 

Chief, Civil Fraud Section 

/s/ James T. Nelson 

 JAMES T. NELSON 

Senior Trial Attorney 

United States Department of Justice

Civil Division 

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