CLASS ACTION COMPLAINT

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Todd M. Friedman (SBN 216752)

Adrian R. Bacon (SBN 280332)

Meghan E. George (SBN 274525)

LAW OFFICES OF TODD M. FRIEDMAN, P.C.

21550 Oxnard St., Suite 780 

Woodland Hills, CA 91367

Phone: 877-206-4741

Fax: 866-633-0228

tfriedman@toddflaw.com

abacon@toddflaw.com

mgeorge@toddflaw.com

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DONNA BURTON, individually and 

on behalf of all others similarly situated,

Plaintiff,

vs.

Smart Living Company and 

EMerchantclub, LLC and DOES 1-10,

Defendant(s).

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Case No.

CLASS ACTION

COMPLAINT FOR VIOLATIONS 

OF:

1. VIOLATIONS OF 

ELECTRONIC FUNDS 

TRANSFER ACT [15 U.S.C. 

§1693 ET SEQ.]

DEMAND FOR JURY TRIAL

Plaintiff DONNA BURTON (“Plaintiff”), on behalf of herself and all others 

similarly situated, alleges the following against Defendants Smart Living Company

and EMerchantClub, LLC upon information and belief based upon personal

knowledge:

INTRODUCTION

1. Plaintiff’s Class Action Complaint is brought pursuant to the 

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CLASS ACTION COMPLAINT

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Electronic Funds Transfer Act, 15 U.S.C. 1693 et seq. (“EFTA”).

2. Plaintiff, individually, and on behalf of all others similarly situated, 

brings this Complaint for damages, injunctive relief, and any other available legal 

or equitable remedies, resulting from the illegal actions of Defendants debiting 

Plaintiff’s and also the putative Class members’ bank accounts on a recurring basis 

after clear revocation of any authorization or similar authentication for 

preauthorized electronic fund transfers from Plaintiff’s and also the putative Class 

members’ accounts, thereby violating Section 907(a) of the EFTA, 15 U.S.C. § 

1693e(a), and Regulation E, 12 C.F.R. § 205.10(c)(1). 

3. Such conduct is inherently deceptive in that it misrepresents to 

consumers the price of Defendants’ services and the consumers’ rights regarding 

those services and misleads the average consumer.

4. Plaintiff alleges as follows upon personal knowledge as to herself and 

her own acts and experiences, and, as to all other matters, upon information and 

belief, including investigation conducted by her attorneys.

JURISDICTION AND VENUE

5. This Court has jurisdiction under 28 U.S.C. 1331, because this action 

is brought pursuant to the EFTA, 15 U.S.C. 1693 et seq.

6. Jurisdiction of this Court arises pursuant to 15 U.S.C. 1693(m), which 

states that, “without regard to the amount in controversy, any action under this 

section may be brought in any United States district court.” 

7. Venue and personal jurisdiction in this District are proper pursuant to 

28 U.S.C. 1391(b) because Plaintiff resides within this District and Defendant does

or transact business within this District, and a material portion of the events at issue 

occurred in this District.

PARTIES

8. Plaintiff, Donna Burton (“PLAINTIFF”), is a natural person residing 

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in Mendocino County in the state of California, and is a “consumer” as defined by 

15 U.S.C. §1693a(6).

9. At all relevant times herein, DEFENDANTS, Smart Living Company

and EMerchantclub LLC (“DEFENDANTS”), were companies engaged in the 

business of providing website hosting services. 

10. The above named Defendant, and its subsidiaries and agents, are 

collectively referred to as “Defendants.” The true names and capacities of the 

Defendants sued herein as DOE DEFENDANTS 1 through 10, inclusive, are 

currently unknown to Plaintiff, who therefore sues such Defendants by fictitious 

names. Each of the Defendants designated herein as a DOE is legally responsible 

for the unlawful acts alleged herein. Plaintiff will seek leave of Court to amend 

the Complaint to reflect the true names and capacities of the DOE Defendants 

when such identities become known.

11. Plaintiff is informed and believes that at all relevant times, each and 

every Defendant was acting as an agent and/or employee of each of the other 

Defendants and was acting within the course and scope of said agency and/or 

employment with the full knowledge and consent of each of the other Defendants. 

Plaintiff is informed and believes that each of the acts and/or omissions 

complained of herein was made known to, and ratified by, each of the other 

Defendants.

FACTUAL ALLEGATIONS - EFTA

12. Beginning in or around 2008, Plaintiff signed up for website hosting 

services sold and managed by Defendants. For consideration for the website 

hosting services, Plaintiff paid approximately $29.99 every month and with yearly 

upgrades of $199.99. Defendant would deduct these sums on a reoccurring basis 

from Plaintiff’s account.

13. In or around March of 2016, Plaintiff informed Defendants that she 

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CLASS ACTION COMPLAINT

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no longer wished to pay for the yearly upgrades of $199.99. Plaintiff sent multiple 

email to Defendant clearly revoking any consent or authorization from Defendant 

to deduct these funds.

14. However, despite Plaintiff’s clear revocation of authorization, 

Defendants continued to deduct funds from Plaintiff’s account on a reoccurring 

basis without Plaintiff’s consent or authorization.

15. Defendants recorded that Plaintiff canceled its membership and 

authorization to deduct funds from her account.

16. Defendants had knowledge that Plaintiff revoked authorization in 

writing on multiple occasions and had no intention of honoring that revocation.

17. Plaintiff alleges such activity to be in violation of the Electronic 

Funds Transfer Act, 15 U.S.C. 1693 et seq. (“EFTA”), and its surrounding 

regulations, including, but not limited to, 12 C.F.R. § 205.10(c)(1).

CLASS ACTION ALLEGATIONS

18. Plaintiff brings this action on behalf of herself and all others similarly 

situated, as a member of the proposed class (hereafter “The Class”) defined as 

follows:

All persons in the United States whose bank accounts 

were debited on a reoccurring basis by Defendants after

Defendants recorded a cancellation request for a monthly 

membership, between one year from the filing of this 

complaint and the present.

19. Plaintiff represents, and is a member of, The Class, consisting all 

persons in the United States whose bank accounts were debited on a reoccurring 

basis by Defendants after Defendants recorded a cancellation request for a monthly 

membership, between one year from the filing of this complaint and the present.

20. Defendants, their employees and agents are excluded from The Class. 

Plaintiffs do not know the number of members in The Class, but believe the Class 

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members number in the hundreds, if not more. Thus, this matter should be certified 

as a Class Action to assist in the expeditious litigation of the matter.

21. The Class is so numerous that the individual joinder of all of its 

members is impractical. While the exact number and identities of The Class 

members are unknown to Plaintiff at this time and can only be ascertained through 

appropriate discovery, Plaintiff is informed and believes and thereon alleges that 

The Class includes hundreds, if not thousands, of members. Plaintiff alleges that 

The Class members may be ascertained by the records maintained by Defendants.

22. This suit is properly maintainable as a class action pursuant to Fed. 

R. Civ. P. 23(a) because the Class is so numerous that joinder of the Class members 

is impractical and the disposition of their claims in the class action will provide 

substantial benefits both to the parties and to the Court.

23. There are questions of law and fact common to the Class affecting the 

parties to be represented. The questions of law and fact to the Class predominate 

over questions which may affect individual Class members and include, but are 

not necessarily limited to, the following:

a. Whether the members of the Class’ bank accounts were debited on a 

reoccurring basis by Defendants on or after Defendants recorded a cancellation 

request for a monthly membership within one year of the filling of this Complaint

to the present; and,

b. Whether Defendants requested written confirmation of the 

cancelation and refused to honor an oral cancellation of an EFT, as is permitted 

under 12 CFR 205.10(c)(1).t. 

24. As someone whose bank accounts was debited on a reoccurring basis 

by Defendants, Plaintiff is asserting claims that are typical of The Class. 

25. Plaintiff will fairly and adequately protect the interests of the members 

of The Class. Plaintiff has retained attorneys experienced in the prosecution of class 

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actions.

26. A class action is superior to other available methods of fair and 

efficient adjudication of this controversy, since individual litigation of the claims 

of all Class members is impracticable. Even if every Class member could afford 

individual litigation, the court system could not. It would be unduly burdensome 

to the courts in which individual litigation of numerous issues would proceed. 

Individualized litigation would also present the potential for varying, inconsistent, 

or contradictory judgments and would magnify the delay and expense to all parties 

and to the court system resulting from multiple trials of the same complex factual 

issues. By contrast, the conduct of this action as a class action presents fewer 

management difficulties, conserves the resources of the parties and of the court 

system, and protects the rights of each Class member.

27. The prosecution of separate actions by individual Class members 

would create a risk of adjudications with respect to them that would, as a practical 

matter, be dispositive of the interests of the other Class members not parties to such 

adjudications or that would substantially impair or impede the ability of such nonparty Class members to protect their interests.

28. Defendants have acted or refused to act in respects generally 

applicable to The Class, thereby making appropriate final and injunctive relief with 

regard to the members of the Class as a whole.

29. Defendants failed to comply with the requirements of the EFTA, 15 

U.S.C. § 1693e(a) and Regulation E, 12 C.F.R. § 205.10(c)(1) as to the Class 

members with respect to the above alleged transactions. 

30. The EFTA, 15 U.S.C. §1693e(a), provides that “[a] consumer may 

stop payment of a preauthorized electronic fund transfer by notifying the financial 

institution orally or in writing at any time up to three business days preceding the 

scheduled date of such transfer.”

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31. Section 205.10(c)(1) of Regulation E provides that “[a] consumermay 

stop payment of a preauthorized electronic fund transfer from the consumer's 

account by notifying the financial institution orally or in writing at least 

three business days before the scheduled date of the transfer.””

32. In multiple instances, Defendants debited bank accounts of the Class 

members on a recurring basis after the consumer requested to stop payments of 

a preauthorized electronic fund transfer from the consumer's account by notifying 

the financial institution orally or in writing at least three business days before the 

scheduled date of the transfer in violation of the EFTA, 15 U.S.C. § 1693e(a) and 

Regulation E, 12 C.F.R. § 205.10(c)(1).

33. The size and definition of the Class can be identified through 

Defendant’s records and/or Defendant’s agents’ records.

COUNT I:

DEFENDANTS VIOLATED THE ELECTRONIC FUNDS TRANSFER 

ACT

(On Behalf of Plaintiff and the Class) 

34. Plaintiff reincorporates by reference all of the preceding paragraphs.

35. The EFTA, 15 U.S.C. §1693e(a), provides that “[a] consumer may 

stop payment of a preauthorized electronic fund transfer by notifying the financial 

institution orally or in writing at any time up to three business days preceding the 

scheduled date of such transfer.”

36. Section 205.10(c)(1) of Regulation E provides that “[a] consumermay 

stop payment of a preauthorized electronic fund transfer from the consumer's 

account by notifying the financial institution orally or in writing at least 

three business days before the scheduled date of the transfer.””

37. In multiple instances, Defendants debited bank accounts of the Class 

members on a recurring basis after the consumer requested to stop payments of 

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a preauthorized electronic fund transfer from the consumer's account by notifying 

the financial institution orally or in writing at least three business days before the 

scheduled date of the transfer in violation of the EFTA, 15 U.S.C. § 1693e(a) and 

Regulation E, 12 C.F.R. § 205.10(c)(1).

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, DONNA BURTON, individually, and on behalf of 

all others similarly situated, respectfully requests judgment be entered against 

Defendant, Smart Living Company, for the following:

(a) An order certifying the Class and appointing Plaintiff as 

Representative of the Class; 

(a) An order certifying the undersigned counsel as Class Counsel; 

(b) An order requiring Defendants, at its own cost, to notify all 

Class Members of the unlawful and deceptive conduct herein;

(c) Restitution for the monies spent by Plaintiff and Class members 

on the Class Products;

(d) An order requiring Defendants to engage in corrective 

advertising regarding the conduct discussed above;

(e) Actual damages suffered by Plaintiff and Class Members as 

applicable from the sale of misbranded Class Products during 

the relevant class period; 

(f) Punitive damages, as allowable, in an amount determined by 

the Court or jury;

(g) Any and all statutory enhanced damages;

(h) All reasonable and necessary attorneys’ fees and costs provided 

by statute, common law or the Court’s inherent power; 

(i) Pre- and post-judgment interest; and

(j) All other relief, general or special, legal and equitable, to which 

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Plaintiff and Class Members may be justly entitled as deemed 

by the Court.

TRIAL BY JURY

38. Pursuant to the seventh amendment to the Constitution of the United 

States of America, Plaintiff is entitled to, and demands, a trial by jury.

Respectfully submitted this 13

th day of February, 2017.

LAW OFFICES OF TODD M. FRIEDMAN, P.C.

By: /s/ Todd M. Friedman

Todd M. Friedman 

Law Offices of Todd M. Friedman 

Attorney for Plaintiff

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