Federal Trade Commission v. Grant Connect, LLC (827 F. Supp. 2d 1199, 2011)

ORDER

PHILIP M. PRO, District Judge.

Presently before the Court are the following motions:

• Motion for Summary Judgment and/or to Dismiss by Defendant Kyle Kimoto (Doc. # 155)

• Motion for Summary Judgment by Defendant Global Fulfillment, Inc. (Doc. #266)

• Motion for Summary Judgment by Defendant Dragon Group, Inc. (Doc. # 267)

• Motion for Summary Judgment by Defendant MSC Online, Inc. (Doc. #268)

• Motion for Summary Judgment by Defendant Global Gold Limited (Doc. #269)

• Motion for Summary Judgment by Defendants Acai, Inc.; Healthy Allure, Inc.; and Total Health, Inc. (Doc. # 270)

• Motion for Summary Judgment by Defendants Ahelear Communications, Inc.; Elite Benefits Group, Inc.; Global Gold, Inc.; Steven R. Henriksen; Premier Plus Member, Inc.; and Vcomm, Inc. (Doc. # 272)

• Motion for Summary Judgment by Defendant Paid to Process, Inc. (Doc. #273)

• Motion for Summary Judgment by Plaintiff Federal Trade Commission (Doc. # 275)

• Motion Under Rule 201 by Defendant Kyle Kimoto (Doc. # 314).

The Court held a hearing on these motions on April 11, 2011. (Mins, of Proceedings (Doc. # 323).)

I. BACKGROUND

Defendant Horizon Holdings, LLC is a limited liability company located in Reno, NV, doing business as Grant Connect and MemberLegalNet. (Pl.’s Mot. for Prelim. Inj. (Doc. # 6) [“Pl.’s Mot.”], Exs. 66-67, 70-71, 81-82.) Horizon Holdings, LLC’s members are Defendants James Gray (“Gray”) and Randy O’Connell (“O’Connell”). (Id., Exs. 66-67.) Defendant Global Gold, Inc. (“Global Gold”) is a Nevada corporation located in Las Vegas, Nevada, which is owned by Defendant Steven Henriksen (“S. Henriksen”). (Id., Exs. 110, 112-113.) Defendant Vantex Group, LLC (“Vantex”) is a limited liability company located in Las Vegas, Nevada. (Id., Ex. 117.) Vantex’s sole member is the Juliette Kimoto Asset Protection Trust, for which Defendant Juliette Kimoto is the investment trustee. (Opp’n to FTC’s Mot. for Prelim. Inj. (Doc. # 62) [“J. Kimoto Opp’n”], Ex. A.) Defendant Vertek Group, LLC (“Vertek”) is a limited liability company located in Las Vegas, Nevada. (PL’s Mot., Ex. 119.) Vertek’s sole member is Defendant Pink LP. (J. Kimoto Opp’n, Ex. A.) Pink’s general partner is Juliette Kimoto. (Id.; PL’s Mot., Ex. 328.) Defendant Rachael Cook (“Cook”), Defendant S. Henriksen’s sister, manages both Vertek and Vantex. (PL’s Mot., Exs. 329-30, 366, 430; Report of Receiver’s Activities (Doc. # 64) [“Receiver’s Report”].) Michael Henriksen (“M. Henriksen”), Defendant S. Henriksen’s brother, was the accountant for Vertek and Vantex. (PL’s Mot., Exs. 189, 430; Receiver’s Report.)

In late 2006 or early 2007, Defendant Kyle Kimoto (“Kimoto”) contacted O’Connell and Gray on behalf of Global Gold to express Global Gold’s interest in creating an online store through which members could purchase merchandise by applying a portion of the price to a credit line. (PL’s Mot., Exs. 565-66.) Global Gold needed software to accept transactions over the Internet. (Id.) O’Connell and Gray agreed to provide services to Global Gold through use of their program, AWARE. (Id.)

In June 2007, Gray and O’Connell’s company, OS Marketing, LLC, entered into a contract with Global Gold to provide the requested services. (Id.) OS Marketing, LLC had no employees, and thus Gray and O’Connell provided the services through Defendant O’Connell Gray, LLC, of which Gray and O’Connell are both members. (Id.) In mid 2007 or early 2008, O’Connell and Gray attended a meeting at the Global Gold offices regarding the project. (Id.) The meeting took place at the Vertek offices in Las Vegas, Nevada. (Id.) At the time, Global Gold and Vertek shared an office suite at this location, although Global Gold later moved to a nearby location. (Id., Ex. 565.)

Some time thereafter, Kimoto introduced O’Connell and Gray to a “grant opportunity.” (Id., Exs. 565-66.) Kimoto, O’Connell, and Gray “agreed to work together on a project, which became known as Grant Connect, to advertise grants.” (Id., Ex. 566.) Under the parties’ arrangement, O’Connell and Gray were to find and secure content for a website and arrange for intake and processing of customer information. (Id., Exs. 565-66.) Vertek was to create and design marketing, and to secure affiliate marketing relationships. (Id.) Global Gold was to sell Grant Connect as an “upsell” on Global Gold’s own offers of credit lines. (Id.) The parties agreed to split-profits, with Vertek receiving 55%, and Grant Connect receiving 45%. (Id.) Additionally, Global Gold received 50% of revenue generated from the sale of Grant Connect through upsales off of Global Gold’s sites. (Id.)

O’Connell and Gray purchased the Grant Connect content from Quantum Particle and Khaled Azar based on content already on the Internet at a website called www. grantsearchlink.com. (Id., Exs. 566, 568-69.) The website material included testimonials from individuals claiming they received hundreds of thousands of dollars in government grant funds quickly and easily through the website. (Id., Exs. 1, 2, 11, 16, 30-32, 566, 570.) The testimonials “were from individuals Khaled Azar claimed to have helped to get grants through the use of www.grantsearehlink. com. None of the individuals used in the testimonials used www.grantconnect.com to secure a grant.” (Id., Ex. 566; see also id. Ex. 570.) Even though none of the individuals giving testimonials ever used the websites related to Grant Connect, Vertek used the testimonials in designing the inaugural Grant Connect website, www.grantconnectoffer.com, and Vertek and/or Vantex used the testimonials in later iterations of the same content at other web addresses, including grantsourceamericaoffer.com, and grantsourceamerica.com. (Id., Exs. 1, 2, 5, 11, 30-32, 443, 447, 565-66.)

The Grant Connect websites’ landing pages typically used pictures of President Barack Obama and Vice President Joe Biden or pictures of a woman holding cash. (Id., Exs. 1, 2; Compl. (Doc. # 1), Ex. 2.) The websites touted the availability of billions of dollars in government grants, and included quotes from news sources such as Fox, NBC, and CBS. (Pl.’s Mot., Exs. 1, 2, 16.) The websites advertised an easy-to-use program to “[ijnstantly find the Grant that’s right for you!” (Id., Ex. 1.) The websites suggested individual consumers could obtain grants for their personal financial needs by stating things such as: “Grants are FREE MONEY given by foundations or the government to help you with your financial situation.” (Id., Exs. 1, 2.) The website indicated the consumer could get money for:

/ Home Purchase / Small Businesses

/ Child Care / Medical Expenses

/ Debt Consolidation / Personal Grants

(Id., Ex. 11.) The landing pages also had testimonials from individuals who never actually used the websites. (Id., Exs. 1, 2, 11,16.)

On the websites’ landing page, the consumer was directed to enter information including their name, address, email address, and phone number. (Id.) The consumer had to click on a box to indicate the consumer had read and agreed with the privacy policy. (Id., Exs. 1, 2.) The consumer then would click on the “Get Access Now!” or “Find My Money!” button. (Id., Exs. 1,16.)

Clicking on the button took consumers to the second page of the website, which contained the same information as the first page, but added data fields for the consumer to enter their credit or debit card information. (Id., Exs. 5, 17.) The websites required the consumer to click in a box to indicate the consumer had read and agreed to “the Terms and Conditions, Privacy Policy and Offer Details below.” (Id.) The terms and conditions and privacy policy were underlined to indicate a link the consumer would have to click on to read the terms and conditions and privacy policy. (Id.) Beneath the checkbox was the button “Get Access Now!” or “Find My Money!” (Id.)

Beneath that button, in smaller, more compact type, were the “offer details.” (Id.) The offer details stated that by clicking the “submit” button, the consumer agreed that Grant Connect would charge the credit or debit card a certain amount, usually $2.78, as a processing fee for the consumer’s seven day trial membership. (Id.) Following the trial period, the consumer’s credit or debit card would be charged $89.95 per month. (Id.)

Additionally, the offer details included “upsells” through negative options, meaning the consumer would be charged for additional products or services if they agreed to purchase Grant Connect and did not cancel the upsell offers within the trial membership period. (Id., Ex. 5.) The up-sells consisted of offers for other programs, usually owned by O’Connell and Gray (such as MemberLegalNet, described as a legal support program) or offers by S. Henriksen and Global Gold (such as ID Pro Alert, described as an identity theft protection program; SmartHealth Gold, described as a medical discount program; and VComm, described as a long distance calling service). (Id., Exs. 5, 17, 42.) The upsell offers contained text similar to the following:

As an additional bonus, you will also receive a 14 day trial of SmartHealth Gold medical and lifestyle benefits for a processing fee of $1.95. Unless you cancel, SmartHealth Gold will bill your account $19.95 for the services each month thereafter. You have the right to cancel by calling the number listed at smarthealthgold.com.

As an additional bonus, I agree to receive a 14 day trial to MemberLegalNet. After the trial period, unless I cancel, MemberLegalNet will charge my account $12.95 a month thereafter. I may cancel by calling the toll free number located at memberlegalnet.com.

(Id., Ex. 5.)

By clicking on the appropriate link, consumers were taken to the site’s terms and conditions page. The terms and conditions state the consumer has agreed to a seven day free trial, which the consumer could cancel at any time by calling the Grant Connect customer service center at the provided number. (Id., Ex. 4.) If the consumer did not cancel within the seven day trial period, Grant Connect would charge a monthly membership fee, usually $30 plus a $9.95 monthly maintenance fee, which would be billed automatically each month to the consumer’s credit card or checking account, unless the consumer canceled the agreement thirty days in advance. (Id.) The monthly maintenance fee was nonrefundable. (Id.) The Grant Connect terms and conditions page also listed terms and conditions for the various upsell offers, although it did not always include the price of those programs, particularly for SmartHealth Gold. (Id., Exs. 4, 21.)

Upon purchasing Grant Connect, the consumer was directed to navigate to the Grant Connect website, www.grantconnect. com. (Id., Ex. 22.) There, the consumer would enter a provided password to access the Grant Connect database, where they could search for grants. (Id.)

Global Gold provided telephone and internet chat customer service for the Grant Connect products. (Id., Exs. 29, 41, 521.) During the online chats, Global Gold representatives indicated, in response to consumer inquiries, that consumers could use the Grant Connect website to locate grants for things such as expansion of an auto salvage business, college, buying a home, home renovation, personal financial needs, hospitalization costs, utilities bills for a personal residence, rent assistance, paying off past personal debts, medical bills, and obtaining a personal loan. (Id., Exs. 298, 522, 525-26.) Global Gold customer service representatives further represented that a consumer could use the Grant Connect database to find a grant to pay off a home mortgage, and that 85-90% of their customers qualified for such grants. (Id., Ex. 298.) Horizon Holdings initially paid for the Grant Connect customer service number, but as of February 6, 2009, Global Gold paid the telephone bill for this number. (Id., Exs. 4, 63-64.)

Although advertised as a quick and easy means to obtain individual grants for personal financial needs, the website was neither quick and easy, nor a source to find grants for personal financial needs. According to David G. Bauer (“Bauer”), who has worked in grant seeking and related consulting since 1977, the www. grantconnectoffer.com website was misleading because it referred to assisting individuals’ financial situation, yet most grants in the Grant Connect database related to grants aimed at achieving a public purpose. (Id., Ex. 298.) Additionally, Bauer concluded the database was not easy to use, misled consumers to believe they were likely to obtain a grant, and contained outdated data. (Id.)

Grant Connect was advertised on its own websites and also offered for a period of time on Global Gold’s various websites as an upsell to Global Gold’s credit line offers. (Id., Ex. 331.) Global Gold’s offers included www.firstplusplatinumoffer.com (“First Plus Platinum”) and www.first universalplatinumoffer.com (“First Universal Platinum”). (Id., Exs. 6, 44.) For the credit line offers, the initial ad would consist of a banner or email which would state things like “$7,500 unsecured credit line,” and

No credit checks!

No Employment verifications!

No Security Deposits!

Bankruptcy? No problem!

APPROVAL GUARANTEED!

(See, e.g., Exs. Vol. 18 (Doc. # 234-3) at 6, 7, 10, 11, & 14.) The banner ads also stated the consumer would receive “0% interest for 12 months and 7.9% thereafter.” (Id.) There was no mention that this was not a traditional line of credit or that the credit line could be used only at the merchant’s online store. Clicking on the “activate now,” “get credit now,” or similar buttons on the banner ad would take the consumer to a line of credit (“LOC”) landing page.

The First Plus Platinum website’s landing page featured in large font “$7,500 credit line.” (Pl.’s Mot., Ex. 6.) The landing page offered 0% interest for the first twelve months, and guaranteed approval. (Id.) The page also contained quotes from various news sources about the necessity for credit, and a quote from Forbes stating, “The easiest way to improve your credit.” (Id.) The landing page provided data fields for the consumer to enter a name and address, and a box to click to indicate the consumer had read the privacy policy. (Id.) Additionally, sometimes the LOC landing pages showed an image of what appeared to be a traditional credit card. (Id., Ex. 44, Exs. Vol. 21 (Doc. # 238-2).)

By filling out the above information and clicking on the “submit” button, the consumer was taken to a second page in the website. There, consumers were told they are one step away from their $7,500 credit line, and if they activate today, they will receive a bonus $1,500 unsecured cash advance. (PL’s Mot., Ex. 42.) The second page indicated the consumer would receive a $7,500 credit line, the application fee was waived, but there was a $2.78 rush activation fee. (Id.) Below this information were data fields for the consumer to enter their credit or debit card information. (Id.) Similar to the Grant Connect site, the page contained a box in which the consumer must click to indicate the consumer read the terms and conditions, the privacy policy, and the offer details below. (Id.) The terms and conditions and privacy policy were underlined, indicating a link which the consumer could click on to read the related web pages, beneath which is the submit button. (Id.) Beneath the submit button were some icons regarding internet security, and below those icons were the offer details. (Id.)

Like the Grant Connect site, the First Plus Platinum site offered various upsells with negative options resulting in the consumer incurring monthly charges for each offer if the consumer did not cancel within the trial period. (Id.) The offer details also stated that the line of credit “is for use towards thousands of our merchandise items only.” (Id.) The terms and conditions web page stated that the First Plus Platinum was not a credit card. (Id., Ex. 7.) Rather, as set forth in paragraph 3 of the terms and conditions, entitled “Disclaimers,” the First Plus Platinum “is a line of credit that can be used by an Account holder to purchase merchandise exclusively at the First Plus Platinum Web site.” (Id.) Paragraph 23 of the terms and conditions stated that the consumer accepts “enrollment for up to 2 additional promotional product offers using the relevant data” entered for the First Plus Platinum card. (Id.) The terms and conditions contained links to the various offers’ websites for further details. (Id.) If the consumer attempted to navigate away from the website, a chat box would appear offering the consumer a “$7,500 line of credit with 0% interest rate for one-year and a 990 activation fee.” (Id., Ex. 43.)

Global Gold made a similar offer through www.fírstuniversalplatinumoffer. com. (Id., Ex. 44.) The First Universal Platinum landing page offered in large type a “guaranteed $7,500 unsecured line of credit.” (Id.) Below that language, and in smaller type, it stated “towards thousands of our merchandise items.” (Id.) As with the other websites, the initial page provided fields for the consumer to enter a name and address and to indicate the consumer had read and agreed with the privacy policy. (Id.) Similar to the First Plus Platinum website, the second page indicated a $7,500 credit line, a waived application fee, and a rush activation fee of $2.78, beneath which the consumer would enter credit or debit card information. (Id., Ex. 45.) The second page also included the checkbox to indicate the consumer had read the terms and conditions, privacy policy, and offer details; and the offer details for the negative option upsell offers in smaller, more compact text beneath the submit button. (Id.) Occasionally, the credit line offers placed a countdown timer on the second page, indicating the consumer would receive an increased credit line if they submitted their credit or debit card information within a certain period of time. (Id., Exs. 391, 395.) At no point was the consumer permitted to view the online store prior to submitting payment information. (Exs. Vol. 37 (Doc. #254) at 70.)

The First Universal Platinum member agreement indicated the First Universal Platinum cards were “not major credit cards such as Visa or Mastercard, or American Express.” (Pl.’s Mot., Ex. 46.) The First Universal Platinum membership fee was a recurring monthly charge of $39.95, which would apply to the current outstanding card balance. (Id.) In paragraph 3 of the membership terms, entitled “Disclaimers,” the terms indicated the line of credit “can be used by an Account holder to purchase merchandise exclusively at the FIRST UNIVERSAL PLATINUM website.” (Id.) Paragraph 22 contained similar language as the First Plus Platinum terms that the consumer agreed to enrollment in up to two additional promotional offers, with links to the affiliated promotional offers’ websites. (Id.) The terms and conditions sometimes did not tell the consumer what the upsells cost, and/or referred them to the upsell offer’s website to get information on the upsells. (PL’s Mot., Exs. 4, 7; S. Henriksen’s Opp’n to Mot. Prelim. Inj., Ex. E.)

As of April 13, 2009, Vantex and Vertek maintained their own company websites which were essentially identical, and both included reference to grant offers. (PL’s Mot., Ex. 12.) The Vantex and Vertek websites were registered in a single account which listed Juliette Kimoto as the contact person, but provided the contact email address steve50678@aol.com. (Id., Exs. 53-55.) S. Henriksen used the email address steve50678@aol.com as the contact email address on business account applications for Global Gold. (Id., Exs. 178, 180, 181.) Vantex also registered the websites www.grantconnectoffer.com, www. grantsourceamerica.com, wwwiirstplus platinumoffer.com, and firstuniversalplatinumoffer.com. (Id., Exs. 56, 59-61.) O’Connell Gray, LLC registered the websites www.grantconnect.com and memberlegalnet.com. (Id., Ex. 57-58.)

Grant Connect and Global Gold accumulated numerous customer complaints in the form of complaints to the Better Business Bureau, customer service calls, customer service live chats, letters, emails, and customers having their credit cards charge back the fees to Grant Connect and Global Gold. (Id., Exs. 374-75; Receiver’s Report.) Typical of the consumers’ complaints were that they had been charged for services they had never agreed to, most often related to the negative option upsell offers. (Id., Exs. 374-75.) Customers also complained that they were unable to find any grants using Grant Connect, and that they thought they were receiving a credit card through Global Gold’s various credit line offers. (Id., Exs. 374-76.) When consumers called to cancel the various offers, Global Gold customer service representatives required the consumers to call different numbers for each upsell program, even though calls for all the programs were answered out of the same call center. (Receiver’s Report.)

As of July 29, 2009, Grant Connect had total sales of $4.3 million from August 2008 to June 2009, but consumers charged back and/or received refunds totaling 20% of sales. (Id.) Of the over 52,000 grant memberships sold, 91% canceled by August 2, 2009. (PL’s Mot., Ex. 527.)

Global Gold and the other Henriksen entities had total sales of $29.1 million from January 2008 to June 2009. (Receiver’s Report.) These entities had a charge-back and refund rate of 15% of total sales, and up to a 23% chargeback rate by June 2009. (Id.) Additionally, Global Gold entities were fined over $380,000 by the credit card networks, indicating chargeback rates substantially above the amount credit card companies approved. (Id.) Moreover, of the over 500,000 line of credit customers enrolled, 94% had canceled by August 2, 2009. (PL’s Mot., Ex. 527.)

Accounting and banking records for the Defendant entities show a variety of transfers amongst Defendants and include various undocumented loans and accounts receivable amongst Defendants. (Id., Exs. 86-88, 134-58, 210-211; Receiver’s Report.) Global Gold’s profit and loss statements and 1099 summaries were located in the Vantex offices. (PL’s Mot., Exs. 453-54.) Additionally, Global Gold’s computerized accounting records were located on Vantex’s computers. (Id., Ex. 528.)

FTC brought this action on July 27, 2009, alleging Defendants Grant Connect; Global Gold; Horizon Holdings; O’Connell Gray, LLC,; Pink LP; Vantex; Vertek; Cook; Gray; S. Henriksen; Juliette Kimoto; and O’Connell deceptively marketed Grant Connect and the credit line offers, failed to adequately disclose the upsells and the related monthly charges, and debited consumers’ bank accounts on a recurring basis without obtaining written authorization. FTC alleges Defendants engaged in a common enterprise while participating in these acts, and thus are jointly and severally liable. FTC sought injunctive relief against these Defendants, which this Court granted on September 22, 2009. (Prelim. Inj. (Doc. # 83), 2009 WL 3074346.) The Court also appointed a Receiver over the corporate entity Defendants. (Id.)

In April 2010, FTC amended the Complaint to add factual allegations regarding other allegedly fraudulent internet website offers, including offers related to work from home and the acai berry. The Amended Complaint (Doc. # 112) added four new individual Defendants: M. Henriksen, Tasha Jn Paul, Kimoto, and Johnnie Smith. The Amended Complaint also added fifteen new corporate Defendants: Acai, Inc.; Ahelear Communications, Inc.; Consolidated Merchant Solutions, LLC; Dragon Group, Inc.; Elite Benefits, Inc.; Global Fulfillment Inc.; Global Gold Limited; Healthy Allure, Inc.; Juliette M. Kimoto Asset Protection Trust; MSC Online, Inc.; OS Marketing Group, LLC; Paid to Process, Inc.; Premier Plus Member, Inc.; Total Health, Inc.; and Vcomm, Inc. The Court granted a second Preliminary Injunction (Doc. # 165) against these Defendants in June 2010.

The parties now cross-move for summary judgment. Since the filing of the summary judgment briefing, FTC has entered into consent judgments with Defendants Johnnie Smith (Doc. # 330) and Vantex Group, LLC; Vertek Group, LLC; Pink LP; Juliette Kimoto Asset Protection Trust; and Juliette Kimoto (Doc. #338). This Order therefore has no application to these Defendants.

II. LEGAL STANDARD

Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a), (c). A fact is “material” if it might affect the outcome of a suit, as determined by the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is “genuine” if sufficient evidence exists such that a reasonable fact finder could find for the non-moving party. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002). Initially, the moving party bears the burden of proving there is no genuine issue of material fact. Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir.2002). After the moving party meets its burden, the burden shifts to the non-moving party to produce evidence that a genuine issue of material fact remains for trial. Id. The Court views all evidence in the light most favorable to the non-moving party. Id.

III. KYLE KIMOTO’S MOTION FOR SUMMARY JUDGMENT (Doc. #155); KYLE KIMOTO’S MOTION UNDER RULE 201 (Doc. #314)

Kimoto moves for summary judgment, arguing FTC cannot show he participated in any violations, and even if he did, he obtained advice from a lawyer and he therefore lacks the requisite scienter. FTC responds by pointing to the declarations of Defendants O’Connell and Gray, who both identified Kimoto as the mastermind behind the Grant Connect offering. FTC also points to its evidence, as set forth in the Preliminary Injunction (Doc. # 83) and the Second Preliminary Injunction (Doc. # 165), upon which this Court found FTC was likely to prevail on the merits that Grant Connect was deceptive and that it was likely to prevail in showing Kimoto participated in and/or controlled the acts of Vertek and Vantex employees.

Kimoto has presented no evidence or argument why the evidence supporting the Second Preliminary Injunction does not raise issues of fact regarding his liability. The Court therefore will deny Kimoto’s motion.

The Court also will deny Kimoto’s Motion Under Rule 201 (Doc. # 314). Kimoto requests the Court take judicial notice that a scienter requirement is necessary for FTC to prevail and that an interpretation that intent is not necessary raises constitutional concerns. The scienter that is required is as set forth in the Preliminary Injunction: (1) participation directly in the acts or practices or authority to control the acts; and (2) actual knowledge of material misrepresentations, reckless indifference to the truth or falsity of a misrepresentation, or awareness of a high probability of fraud along with an intentional avoidance of the truth. F.T.C. v. Cyberspace.Com LLC, 453 F.3d 1196, 1202 (9th Cir.2006). To the extent Kimoto is suggesting some other proof of intent is required, his motion is denied.

IV. S. HENRIKSEN AND HIS ENTITIES’ MOTIONS FOR SUMMARY JUDGMENT (Doc. #266 (GLOBAL FULFILLMENT), # 267 (DRAGON), #268 (MSC), #269 (GLOBAL GOLD LIMITED), # 270 (ACAI, INC.; TOTAL HEALTH; HEALTHY ALLURE), #273 (PAID TO PROCESS), & # 272 (GLOBAL GOLD, INC.; ELITE BENEFITS, INC.; PREMIER MEMBER PLUS, INC.; VCOMM, INC.; ALLCLEAR COMMUNICATIONS, INC.; & S. HENRIKSEN))

S. Henriksen and his various entities (“Moving Defendants”) move for summary judgment in several separately-filed motions. Generally, Moving Defendants argue FTC did not make particularized allegations against most of the Moving Defendants in the Amended Complaint, and FTC cannot lump all Defendants in all allegations. Moving Defendants also contend they did not engage in any of the alleged misconduct, and they were not part of a common enterprise with the other Defendants. Moving Defendants argue they were separately owned and operated; had their own mailing addresses, phone and fax numbers, toll free customer service phone numbers, bank accounts, merchant accounts, and email and web servicers; entered into their own contracts; and paid their own bills. Moving Defendants contend these facts demonstrate they were not a common enterprise. Moving Defendants also argue the LOC, work-from-home, and acai offers were not deceptive.

FTC responds that it set forth allegations against each Defendant, and to the extent it made allegations referring to all Defendants, it meant all Defendants engaged in the alleged conduct. FTC also argues that most of the Moving Defendants do not present any evidence that any of the schemes did not violate the FTC Act and Moving Defendants directly participated in and/or benefitted from the schemes. FTC contends its own motion for summary judgment raises sufficient questions of fact to preclude summary judgment for any Defendant on any claim. FTC further notes that Moving Defendants do not move for summary judgment on the grant offer, and therefore at best they are seeking partial summary judgment on the LOC offers. FTC also argues Moving Defendants were part of a common enterprise, and thus are jointly and severally liable on all counts.

With respect to the argument that FTC did not make particularized allegations as to each Defendant in the Amended Complaint, that type of challenge is appropriate at the dismissal stage. This case is at the summary judgment stage, and FTC set forth what it contends each Defendant did and supported those contentions with literally hundreds of exhibits. Defendants may not agree with FTC’s characterization of their activities, but there is no confusion about the behavior FTC accuses each Defendant of having engaged in at this point in the proceedings.

As to Moving Defendants being separate entities and not part of a common enterprise, Defendants make various representations about their corporate separateness in their motions. However, Defendants do not support most of these statements with admissible evidence, and in some instances the evidence Defendants rely upon raises issues of fact regarding common enterprise. For example, Defendant Global Fulfillment, Inc. (“Global Fulfillment”) was founded by S. Henriksen as a fulfillment company to provide the products customers purchased through the LOC offers. S. Henriksen testified at his deposition that he is the sole owner, president, and director of Global Fulfillment. He also testified that Global Fulfillment shared a physical address with Global Gold and “[i]t was basically just Global Gold’s fulfillment company. Really the same company, as well.” (Mot. Summ. J. (Doc. # 266), Ex. 1 at 52-53.) S. Henriksen also testified Global Fulfillment did not have its own employees, it shared Global Gold’s employees. (Id. at 53.)

The same is true of all of the corporate Moving Defendants. They are all owned by S. Henriksen, and operated out of the same physical address using the same employees. Although Moving Defendants represent in their papers, without citation to record evidence, that they had separate mailing addresses, these Defendants shared a physical address with S. Henriksen’s entity, Global Gold. Even if Defendants had their own phone numbers, bank accounts, and paid their own bills, that would not preclude a common enterprise finding. As discussed more fully below with respect to FTC’s Motion for Summary Judgment, common enterprise is not the same thing as the corporate alter ego doctrine.

Moreover, the arguments and evidence presented in support of FTC’s Motion for Summary Judgment raise genuine issues of material fact as to each scheme’s deceptive nature, each Defendant’s participation in the various schemes, and all Defendants’ participation in a common enterprise. Although Moving Defendants attempt to defend the LOC, work-from-home, and acai offers, their defense is a rehashing of the same arguments made at the preliminary injunction stage. Based on the same evidence and argument, this Court found FTC was likely to prevail on the merits, and the Court entered the Preliminary Injunction. Issues of fact therefore remain and the Court will deny Moving Defendants’ Motions for Summary Judgment.

V. PLAINTIFF FTC’S MOTION FOR SUMMARY JUDGMENT (Doc. #275)

Plaintiff FTC moves for summary judgment against all remaining Defendants on all of the various offers. Specifically, FTC contends the Grant Connect, LOC, work-from-home, and Acai Total Burn offers were deceptive, failed to disclose material terms, and used phony testimonials. FTC also argues Defendants engaged in the unauthorized debiting of consumers’ bank accounts. FTC thus contends it is entitled to summary judgment on all of its claims that Defendants violated Section 5(a) of the FTC Act in relation to each of the offers and that Defendants violated the Electronic Funds Transfer Act (“EFTA”) and Regulation E. FTC further contends the corporate Defendants are jointly and severally liable because they were a common enterprise, and the individual defendants are personally liable because they had authority to control the corporate Defendants and/or they had actual knowledge of or were recklessly indifferent to the deception. FTC therefore seeks injunctive and equitable monetary relief.

Defendants oppose on various grounds, including that the LOC offers disclosed all material terms, the work-at-home offers were not deceptive because they only projected potential income, and the acai offer was not deceptive because Defendants never advertised celebrity endorsements for the acai offer. Defendants do not defend the Grant Connect offer on its merits, although O’Connell and Gray attempt to defend the advertising of Grant Connect as disclosing all material terms regarding the associated upsells.

A practice is deceptive under the Federal Trade Commission Act “if it is likely to mislead consumers acting reasonably under the circumstances ... in a way that is material.” Cyberspace.Com LLC, 453 F.3d at 1199. “A solicitation may be likely to mislead by virtue of the net impression it creates even though the solicitation also contains truthful disclosures.” Id. at 1200. Making disclosures in fine print may not overcome an advertisement’s deceptive net impression. Id. at 1200-01 (holding fine print notices on reverse side of check did not overcome net impression that check was a refund or rebate when the fine print stated that cashing the check would result in a monthly fee for internet access); F.T.C. v. Brown & Williamson Tobacco Corp., 778 F.2d 35, 42-43 (D.C.Cir.1985) (holding advertisement’s description of cigarette tar content was deceptive even though fine print in the corner of the advertisement truthfully explained how the tar content was measured). A defendant violates the Act if its advertisement “induces the first contact through deception, even if the buyer later becomes fully informed before entering the contract.” Resort Car Rental Sys., Inc. v. F.T.C, 518 F.2d 962, 964 (9th Cir.1975).

Examples of deceptive conduct violative of the Act include unsubstantiated claims that consumers can make a lot of money using the defendant’s product, unsubstantiated claims relating to the therapeutic value of the defendant’s product, or providing false testimonials regarding the defendant’s product. See F.T.C. v. Colgate-Palmolive Co., 380 U.S. 374, 389, 85 S.Ct. 1035, 13 L.Ed.2d 904 (1965) (“It is generally accepted that it is a deceptive practice to state falsely that a product has received a testimonial from a respected source.”); F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir.2009) (finding program that asserted consumers would make lots of money in a small amount of time by brokering privately held mortgages was deceptively advertised where it was advertised as the “easiest way to make $10,000 every 30 days ... guaranteed,” yet the owner had no substantiation for the earnings claim and evidence showed consumers made little to nothing); Sterling Drug, Inc. v. F.T.C., 741 F.2d 1146, 1152 (9th Cir.1984) (holding that an advertisement claiming scientifically established therapeutic superiority of pain relief medicine had to be substantiated); F.T.C. v. Bronson Partners, LLC, 564 F.Supp.2d 119, 125 (D.Conn.2008) (“[W]hen an advertisement contains a testimonial reflecting the experience of an individual with a product, there is an implicit representation that such experience reflects the typical or ordinary results anyone may anticipate from use of the product.” (quotation omitted)). While proof that consumers actually were deceived is not required, such evidence is “highly probative to show that a practice is likely to mislead consumers acting reasonably under the circumstances.” Cyberspace.Com LLC, 453 F.3d at 1201.

A. M. Henriksen’s Objections

Defendant M. Henriksen objects to FTC’s purported failure to preserve evidence. M. Henriksen argues he is hampered in responding to FTC’s motion due to this loss of evidence. There are three categories of evidence which M. Henriksen claims FTC failed to preserve: (1) emails hosted by rackspace.com; (2) website pages advertising the various offers at Virgin Offers Media; and (3) a computer error resulting in the loss of sales data for Vcomm and Allclear.

As to the failure to preserve the racks-pace.com emails, M. Henriksen requested the emails from the Receiver. The Receiver responded that none of Defendants advised the Receiver about the emails at rackspace.com, and rackspace.com deleted the accounts when no payment was made. Defendants do not deny that none of them advised the Receiver about the existence of the emails at rackspace.com. Thus, M. Henriksen’s attempt to blame the Receiver for failing to preserve the evidence is disingenuous.

As to the Virgin Offers Media data, that information was lost when Virgin Offers Media suffered a burglary in which it lost equipment and shut down. Virgin Offers Media thereafter did not pay for and maintain any electronic data. FTC is not responsible for this loss of evidence. Nothing required FTC or the Receiver to preserve evidence at an unrelated, non-receiver entity.

Finally, as to the lost sales data related to Vcomm and Allclear, the Receiver’s Report contained data related to these sales. To the extent M. Henriksen contends the loss of this data renders any damages award speculative, the Court will address that argument below in the discussion regarding damages.

As to all of these objections, Defendants had subpoena power and could have obtained the identified materials. Moreover, M. Henriksen does not identify what in the lost emails, Virgin Offers Media data, or lost sales data would support his defense.

M. Henriksen has not shown FTC failed to preserve evidence or that if it did, such lost evidence was material to any remaining issue in this case. The Court therefore will overrule M. Henriksen’s objections.

B. Common Enterprise

FTC seeks joint and several liability as to all Defendants as a common enterprise. FTC points to the common ownership, movement of employees, joint work across the various offers without regard to written contracts or corporate formalities, the set up of interdependent economic relationships such that everyone’s profits were jointly tied to how many consumers purchased and continued to pay for the various offers and upsells, and the use of the same strategies for all offers. Defendants contend they were separate entities with separate personnel, addresses, ownership, and they entered into contracts with third parties not alleged to be part of the common enterprise. Defendants argue that the fact that Defendants did business with each other does not make them a common enterprise.

“[I]n situations where corporations are so entwined that a judgment absolving one of them of liability would provide the other defendants with a clear mechanism for avoiding the terms of the order, courts have been willing to find the existence of a common enterprise.” F.T.C. v. Nat’l Urological Grp., Inc., 645 F.Supp.2d 1167, 1182 (N.D.Ga.2008) (quotation omitted). “When corporations act as a common enterprise, each may be held liable for the deceptive acts and practices of the other.” Id.

“[Ejntities constitute a common enterprise when they exhibit either vertical or horizontal commonality-qualities that may be demonstrated by a showing of strongly interdependent economic interests or the pooling of assets and revenues.” F.T.C. v. Network Servs. Depot, Inc., 617 F.3d 1127, 1142-43 (9th Cir.2010). To determine whether a common enterprise exists, the Court considers factors such as:

common control; the sharing of office space and officers; whether business is transacted through a maze of interrelated companies; the commingling of corporate funds and failure to maintain separation of companies; unified advertising; and evidence that reveals that no real distinction exists between the corporate defendants.

Nat’l Urological Group, Inc., 645 F.Supp.2d at 1182; see also Delaware Watch Co. v. F.T.C., 332 F.2d 745, 746 (2d Cir.1964) (finding common enterprise where “the same individuals were transacting an integrated business through a maze of interrelated companies”). The Court evaluates “the pattern and frame-work of the whole enterprise.” Nat’l Urological Group, Inc., 645 F.Supp.2d at 1182 (quotation omitted).

For example, the United States Court of Appeals for the Ninth Circuit found a common enterprise existed where companies were commonly owned; pooled resources, staff, and funds; and participated to some extent in a common venture to sell the same products. Network Servs. Depot, Inc., 617 F.3d at 1143. Because the defendants participated in and benefitted from a “shared business scheme,” the “common revenue generated in the course of that scheme was the proper subject of the court’s equitable powers under the FTC Act.” Id.

No genuine issue of material fact remains that Defendants operated as a common enterprise. All the various offers were run by the same individuals using different company names. Defendants changed entity names and swapped and shared personnel. For example, Vertek, a Juliette Kimoto entity, changed its name to Vantex in a transition so seamless neither inside employees nor outsiders like O’Connell and Gray noticed a difference. They both operated out of the same address using the same employees performing the same work. Vantex’s employees were in the process of being rolled into Dragon, an S. Henriksen entity, when FTC obtained the temporary restraining order in this case. S. Henriksen’s entities, although purporting to have different mailing addresses, all operated out of the same physical location using the same employees. S. Henriksen’s entities sometimes shared office space with Vantex, and an office map at Vantex shows office space set aside within the Vantex offices for Dragon employees. Vantex, in turn, initially operated out of S. Henriksen’s home. S. Henriksen listed M. Henriksen as Global Gold’s Director of Accounting on an immigration form in New Zealand, even though M. Henriksen was a Vantex employee. O’Connell and Gray likewise created different entities, but all operated out of the same physical address using the same employees in Reno.

Defendants also blurred the lines of corporate separateness in their activities. S. Henriksen’s email address was used as the point of contact for Vantex’s and Vertek’s corporate web addresses, even though he was not an owner or employee of either company, but purportedly was their client. Vertek and Vantex were the registrars for domains for most of the offers, including the grant, LOC, work-from-home, and nutraceutical offers, even though the content of those websites was owned by S. Henriksen or O’Connell and Gray. (PL’s Mot., Ex. 12 at ¶ 61, Ex. 62 (showing over 100 websites registered by Vantex with variations on the offer names).) Vantex also advertised the other Defendants’ various offers, including Grant Connect, One Hour Wealth Builder, and First Universal Platinum, on Vantex’s own website. (Id., Ex. 13.)

Email traffic shows coordinated activity amongst all Defendants across the spectrum of offer campaigns. For example, O’Connell and Gray were involved in discussions regarding chargebacks and what credit card statement descriptors ought to be used for Global Gold’s campaigns, even though chargebacks usually would be considered Global Gold’s confidential business information. (Receiver’s Report; Exs. Vol. 14 (Doc. # 74-1), Exs. 558, 560; Exs. Vol. 28 (Doc. # 245), Ex. 803 at 5511-12.) Gray stated that upon Global Gold’s account being canceled due to high charge-backs, O’Connell would “recommend that a new company be created (with different ownership) and we go right back to” the same processor. (Exs. Vol. 22 (Doc. #239-1), Ex. 768.) Defendants Johnnie Smith and M. Henriksen, who worked for Vantex/Vertek, not Global Gold, were copied on this email chain. (Id.) O’Connell and Gray also were involved in answering questions relating to merchant accounts set up for Paid to Process. (Receiver’s Report.) M. Henriksen and Kyle Kimoto of Vantex/Vertek met with a potential funder of Global Gold without S. Henriksen, the owner of Global Gold. (Exs. Vol. 29a & 29b (Doc. # 246-1), Ex. 804 at 5783-85.) O’Connell and Gray and their entities permitted the Las Vegas Defendants to use the AWARE program for new offers without any contractual understanding as to what O’Connell and Gray would be paid in return. Global Gold’s profit and loss statements and 1099 summaries were located in the Vantex offices. (Exs. Vol. 8 (Doc. #66), Exs. 453-54.) Additionally, Global Gold computerized accounting records were located on Vantex’s computers. (Exs. Vol. 14 (Doc. # 74), Ex. 528.)

Defendants engaged in concerted and coordinated action across campaigns, and made their profits interdependent. S. Henriksen provided the substantive content for the Acai, Domain Processing/One Hour Wealth Builder (procured by O’Connell and Gray for Global Gold at Kyle Kimoto’s urging), and LOC offers, while O’Connell and Gray provided the content for the Grant Connect offer. Vantex/Vertek provided the creative web design. O’Connell and Gray provided the AWARE software, and O’Connell and Gray did not require new contracts for the use of AWARE on new offers. The same two-step ordering process with the inadequately disclosed negative option upsells were used for all offers. Defendants used Global Gold and/or Dragon to perform customer service for all offers, yet made customers call separate numbers to cancel each offer and upsell even though all calls were being answered out of the same call center. Defendants jointly and collectively discussed the chargeback issue across product lines.

Defendants also repeatedly used different company, offer, and credit card descriptor names for the various offers and upsells. Doing so allowed Defendants to make it appear that Defendants were different companies, and to attempt to lower their chargeback ratios for the various campaigns. (See Exs. Vol. 14, Ex. 558 at 2640 (discussing plan to avoid chargebacks by “spreading amount [sic] multiple accounts”).)

O’Connell and Gray were paid for use of the AWARE software not as a license for each offer, but as a percentage of profits from the various offers. Defendants thus made their potential profits interdependent on the success of the various offers and upsells. Accounting and banking records for Defendant entities show a variety of transfers amongst Defendants, and include various undocumented loans and accounts receivable. (PL’s Mot., Exs. 86-88, 134-58, 210-211; Receiver’s Report.)

Defendants contend they are separate entities and not a common enterprise because they have separate bank accounts, obey corporate formalities, enter separate contracts, and file separate tax returns. For example, Defendant OS Marketing provides some contracts it entered into with third parties other than the other Defendants in this case. (O’Connell’s & Gray’s Opp’n to FTC’s Mot. Summ. J. (Doc. #306) at 75-90; Opp’n to Mot. Summ. J. (Doc. # 306-1).) Other than these third party contracts, Defendants provide no evidence of corporate separateness. Moreover, the common enterprise is not an alter ego analysis. The entities formally may be separate corporations, but operate as a common enterprise.

As outlined above, no genuine issue of material fact remains that Defendants engaged in a common enterprise for the various offers involved in this case. The Court therefore will grant FTC’s Motion for Summary Judgment on the question of common enterprise.

C. Count One

Count one alleges Defendants made misrepresentations regarding the grant offers. FTC moves for summary judgment, arguing no genuine issue of material fact remains that Grant Connect was a fraudulent scheme. Defendants do not attempt to defend the grant offers in and of themselves, instead arguing the upsells on Grant Connect were not deceptively advertised.

As set forth in the Preliminary Injunction, Grant Connect and its other iterations, such as Grant Source America, were deceptively advertised. Defendants claimed that consumers could obtain grants quickly and easily, and for a variety of personal uses such as home mortgages, personal debts, and medical expenses. However, grants were not available for individual needs as advertised, finding any grant was neither quick nor easy, and much of the material in the database was outdated, further reducing the likelihood of obtaining a grant.

Moreover, customer service representatives made numerous misrepresentations to consumers who called the customer service line or initiated customer service chats regarding their likelihood to obtain a grant or the availability of grants for personal individual needs, and the overall success rate of Grant Connect customers. No Defendant attempts to defend Grant Connect on the merits as not deceptively advertised. O’Connell and Gray attempt to defend on the concept that the upsells were not deceptively advertised, but count one is directed at Grant Connect, not the related upsells.

Defendants M. Henriksen, O’Connell, and Gray argue some of the customer affidavits are false regarding the details of their orders and therefore FTC has failed to support its motion. Some of Defendants’ arguments are merely a disagreement with the customer’s statement. For example, some of the customers aver they never saw anything advising them of the upsells or other charges. Defendants contend the consumers must have seen the terms for the upsells because they had to click on the button indicating they read the terms and conditions. The consumers’ statements that they did not see anything about other charges are not demonstrably false. The fact that they had to click in the box indicating they had read the terms and conditions does not mean they actually read the terms and conditions. Further, to the extent Defendants identify inaccuracies in some of the consumer affidavits, none of those purported inaccuracies raises an issue of fact regarding the deceptive marketing. Most of the alleged inaccuracies relate to how much a customer paid or how many times they were billed. That would not alter the fact that these were in fact consumers who purchased the product and were deceived. Even if the upsells were fully disclosed, that does not alter the inquiry under count one that Grant Connect, rather than the upsells sold with Grant Connect, was deceptively marketed. Further, Defendants do not provide evidence documenting every alleged inaccuracy and do not identify inaccuracies in every consumer affidavit. Thus, even if the Court excluded the affidavits to which Defendants object, other consumer affidavits support FTC’s motion.

Defendants point to no evidence raising a genuine issue of material fact that Grant Connect was a legitimate product, that finding a grant was quick and easy as advertised, or that any grant could be obtained for the types of personal needs set forth in the offer or as represented by customer service representatives. FTC is entitled to summary judgment on count one.

D. Count Two — LOC Misrepresentations

Count two alleges Defendants deceptively led consumers to believe they were receiving a general purpose LOC like a traditional credit card. FTC argues the initial advertisements suggest a traditional line of credit, and the disclosures regarding the fact that it is not a traditional line of credit came later, in smaller print, after the net impression of a credit card already existed in the consumer’s mind. FTC notes that the misleading nature of the offers is bolstered by the high cancellation rate, the high refund and chargeback rate, the comparatively low number of actual orders from the online store, and the complaints to the Better Business Bureau.

Defendants respond that all material terms were disclosed, as demonstrated by the fact that beneath the words “$7500 credit line” the offer said “towards thousands of our merchandise items.” Defendants further argue that consumers could not enter payment information without clicking in a box to indicate they had read the terms and conditions, which disclosed the nature of the offer. Defendants also note the offer details were located on the same page beneath the button the consumer would click to submit their payment information. On the issue of scienter for the individual Defendants, Defendants rely on a letter from Global Gold’s attorney stating that the offer was not deceptive and on the fact that Yantex employed a compliance officer, Rachel McKinnon, to ensure the offers complied with applicable rules and regulations.

The LOC offers were marketed in a multi-step process, and in such a way that the disclosures come out a little at a time. The disclosures were often in dense compact text or text which is difficult to see, or the consumer had to scroll down on the screen or navigate to another page to read the disclosures. The initial ad would consist of a banner or email which would advertise an unsecured credit line, and the ad did not mention the offer was not for a traditional line of credit or that the credit line could be used only at the merchant’s online store.

The landing pages, although different in minor details such as graphics and the name of the LOC, generally consisted of step one of the ordering process. The landing page would have in large and easy to read type “$7,500 credit line,” and “0% interest.” The landing page also often would have quotes from news sources such as Fox, CBS, and Forbes, about the importance of having credit. Sometimes the landing page also included the language “towards thousands of our merchandise items” under the larger, more prominent “$7,500 credit line.” Other times, however, there was no mention of the fact that the offer was not a general line of credit on the landing page. Additionally, the landing pages sometimes showed an image of what appeared to be a traditional credit card.

After submitting this information, the consumer would be taken to step two of the ordering process. This page looked almost exactly like the first page except the fields for entering personal contact information were changed to data entry fields to enter payment information for a nominal fee to activate the offer. Additionally, there was another box which the customer had to click in to indicate the customer read and agreed to the terms and conditions, privacy policy, and offer details. In small compact type beneath the submit button were the offer details, including the additional upsells. At no point was the consumer permitted to view the online store prior to submitting payment information.

Clicking on the link to the terms and conditions took the consumer to a separate terms and conditions web page. The terms and conditions page made certain disclosures, including that the line of credit was not a major credit card like Visa or Mastercard, the amount of the membership per month, and that it was a line of credit that could be used only at the LOC offer website. However, the consumer must click to a separate page to get these details, and they are contained in what appears at first glance to be similar to a traditional credit card’s terms and conditions, including a table which is required of credit cards pursuant to 12 C.F.R. § 226.5a and Appendix G, indicating the interest rate, annual fee, and late charges.

Even though the offer contains some truthful statements, the key inquiry is whether the net impression is deceptive. No genuine issue of material fact remains that the LOC offers are deceptive. Defendants’ fine print disclosures do not overcome their advertisements’ deceptive net impression, including their inducement of initial contact through deception, even if consumers later could become fully informed. First, the LOC offers never disclosed that the line of credit was good only at Defendants’ store on the banner ads and initial contact emails. Additionally, Defendants did not always make the disclosure that the line of credit was good only at Defendants’ online store on the landing page. For those ads, the customer would learn about the offer details only by reading through the small type in the terms and conditions on a separate page after being lured in with promises of an unsecured credit line.

Even the offers that include the language “towards thousands of our merchandise items” are deceptive. The net impression from the initial banner ad and the first landing page is that this is a traditional credit card. The banner ads say nothing about an online shopping store. The landing page does so only in smaller, often hard to see type that is buried by the larger, sensationalized text regarding the amount of credit, the zero percent interest, and the images of a traditional credit card. It is not until step two that the consumer gets the offer details, and these are placed in small, compact type at the bottom of the page, where the consumer has to scroll down to see them. Because the second web page is almost identical to the first page, the consumer likely is not looking for newly added terms and conditions on this page. Additionally, the consumer is not permitted to view the online store before submitting payment information. The high number of cancellations, refunds, and chargebacks suggest that in fact consumers were deceived about what they were ordering, and FTC offers the affidavits of several customers who aver they actually were deceived, as they thought they were getting a traditional line of credit.

Courts have found similar LOC offer schemes were deceptive as a matter of law. For example, in F.T.C. v. Peoples Credit First, LLC, the United States Court of Appeals for the Eleventh Circuit affirmed the district court’s holding the defendant’s ads were deceptive as a matter of law. 244 Fed.Appx. 942 (11th Cir.2007) (unpublished). There, the defendants mailed out fliers to consumers telling them that for a $45 or $49 advance fee, they were guaranteed approval for a “First Platinum card with a credit line of $5,000.00.” Id. at 948. Instead of a credit card, consumers received a membership to a shopping club. Id. The scheme resulted in hundreds of complaints to the defendant and to the Better Business Bureau. Id. at 943-44. Consumers stated they thought they were receiving a traditional credit card like a Visa or Mastercard. Id. The Eleventh Circuit noted that the fact that the ads’ words literally were true was not determinative, and the “material implication” of the ads was that the consumer would receive a credit card with a $5,000 credit line upon paying the advance fee. Id.

The district court in the People’s Credit case noted that the terms and conditions on the website indicated buyers would get a membership card, not a Visa or Master-card. F.T.C. v.