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Philip J. Berg, Esquire Pennsylvania I.D. 9867 LAW OFFICES OF PHILIP J. BERG 555 Andorra Glen Court, Suite 12 Lafayette Hill, PA 19444-2531 Telephone: (610) 825-3134 E-mail: philjberg@gmail.com Attorney for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION : : : Plaintiffs, : : : : : : : : : : Defendants. : : : : : : :
CIVIL ACTION NUMBER: 8:11-cv-00485-AG (AJW) PLAINTIFFS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THEIR OPPOSITION TO DEFENDANT INTELIUS, INC.S MOTION FOR SUMMARY JUDGMENT Date of Hearing: March 12, 2012 Time of Hearing: 10:00 a.m. Location: Courtroom 10D
TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Please take notice, that pursuant to the Federal Rules of Evidence [Fed. R. Evid.], Rule 201, Plaintiffs, Lisa Liberi, Lisa Ostella, Go Excel Global, Philip J. Berg, Esquire and the Law offices of Philip J. Berg [Plaintiffs] by and through their undersigned counsel, respectfully request this Court to take Judicial Notice of
Liberi, et al, Plaintiffs Request for Judicial Notice
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the following Exhibits in Support of Plaintiffs Opposition to Defendant, Intelius, Inc.s Motion for Summary Judgment. 1. EXHIBIT 1 - Intelius, Inc.s S-1/A Form S-1, Registration Statement Under the Securities Act of 1933, SEC File No. 333148597 filing with the Securities and Exchange Commission on October 19, 2009; 2. EXHIBIT 2 - Intelius, Inc.s February 9, 2010 Press Release introducing Intelius branding of TalentWise; 3. EXHIBIT 3 - Federal Case, Order of Settlement for Fair Credit Report Act Violations, in the U.S.D.C., Northern District of Alabama, Western Division, Moore v. Intelius, Inc., et. al, Case No. 7:08-cv001062-SLP Intelius, Inc. admitted Plaintiff was the prevailing party; and 4. EXHIBIT 4 - Federal Case, Intelius, Inc. Settlement of Fair Credit Report Act Violations, U.S.D.C., Northern District of Oklahoma, Tulsa Division, Williams v. Intelius, Inc., et. el, Case No. 4:09-cv00217-TCK-PJC.
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5. EXHIBIT 5 - FTC v. Accusearch, Inc., 2009 WL 1846344 (10th Cir. June 29, 2009), U.S. Court of Appeals for the Tenth Circuit upheld the District Courts denial of immunity under the
Communications Decency Act and granted Summary Judgment in favor of the FTC. The Court held that CDA immunity was not
available to defendants because the claims at issue did not seek to treat them as the publisher of information, a prerequisite to such immunity. Rather, they arose out of Defendants purchase and resale of confidential information to third parties.1 Fed. R. Evid. 201 authorizes a Court to take Judicial Notice of facts that are not subject to reasonable dispute and are either (1) generally known with the territorial jurisdiction of the Trial Court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); See also Peel v. Brooks America Mortg. Corp., No. 8:11-cv-0079-JST, 2011 WL 2174373, at *4 (C.D. Cal. June 1, 2011) (Taking Judicial Notice of Complaints and Court Orders [b]ecause all of these documents appear to be public records from either related proceedings or from other cases); Haney v. Pacific Telesis Group, No.CV00758AHMMAnX, 2000 WL 333400194, at
Intelius filed a request for Judicial Notice of Geller, et al. v. Intelius, et al., Los Angeles Superior Court Case No. BC 453778, that conflicts with the Tenth Circuit Ruling of FTC
Liberi, et al, Plaintiffs Request for Judicial Notice
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*2 (C.D. Cal. Sept. 19, 2000) ([T]he Court may take Judicial Notice of the Complaint from another case because a complaint is a matter of public record.). Judicial Notice is mandatory if it is requested by a party and the Court is supplied with the necessary information. Fed. R. Evid. 201(d). Judicial Notice is appropriate for SEC filings and press releases, as they are capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned, In re Network Assocs. Sec. Litig., 2003 U.S. Dist. LEXIS 14442, *2, n.3 (N.D. Cal. March 25, 2003) (citing Fed. R. Evid. 201(b)). Plaintiffs
EXHIBITS 1 through 5 are matters of public record and therefore are Judicially Noticeable. For the reasons outlined above, Plaintiffs respectfully request that this Court take Judicial Notice of the attached documents. Respectfully submitted,
555 Andorra Glen Court, Suite 12 Lafayette Hill, PA 19444-2531 Telephone: (610) 825-3134 E-mail: philjberg@gmail.com Attorney for Plaintiffs
v. Accusearch, Inc., 2009 WL 1846344 (10th Cir. June 29, 2009)
Liberi, et al, Plaintiffs Request for Judicial Notice
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Case 8:11-cv-00485-AG-AJW Document 466-1 Filed 02/20/12 Page 1 of 37 Page ID #:10925 SEC Info Home Search My Interests Help Sign In Please Sign In
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Pre-Effective Amendment to Registration Statement (General Form) Form S-1 Filing Table of Contents
Document/Exhibit 1: S-1/A 2: EX-2.3 3: EX-2.4 4: 5: 6: 7: 8: 9: 10: 11: 12: 13: 14: 15: 16: 17: 18: 19: EX-3.1 EX-3.3 EX-10.4 EX-10.5 EX-10.10C EX-10.10D EX-10.13 EX-10.14 EX-10.15 EX-21.1 EX-23.2 EX-23.3 EX-24.1 EX-99.1 EX-99.2 EX-99.3 Description Pre-Effective Amendment to Registration Statement (General Form) Plan of Acquisition, Reorganization, Arrangement, Liquidation or Succession Plan of Acquisition, Reorganization, Arrangement, Liquidation or Succession Articles of Incorporation/Organization or By-Laws Articles of Incorporation/Organization or By-Laws Material Contract Material Contract Material Contract Material Contract Material Contract Material Contract Material Contract Subsidiaries of the Registrant Consent of Experts or Counsel Consent of Experts or Counsel Power of Attorney Miscellaneous Exhibit Miscellaneous Exhibit Miscellaneous Exhibit Pages HTML HTML HTML HTML HTML HTML HTML HTML HTML HTML HTML HTML HTML HTML HTML HTML HTML HTML HTML Size 1.99M 189K 102K 41K 99K 13K 21K 23K 16K 136K 47K 144K 8K 8K 8K 11K 12K 7K 9K
S-1/A Pre-Effective Amendment to Registration Statement (General Form) Document Table of Contents Page 1 " " " (sequential) (alphabetic) Alternative Formats (Word, et al.) Balance Sheet Business Capitalization Certain Relationships and Related Party Transactions Consolidated Balance Sheets Top
1st Page - Filing Submission Prospectus Summary Risk Factors Special Note Regarding Forward-Looking Statements and Industry Data " Use of Proceeds " Dividend Policy " Capitalization
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Case 8:11-cv-00485-AG-AJW Document 466-1 #:10926 Dilution Selected Consolidated Financial Data Management's Discussion and Analysis of Financial Condition and Results of Operations Business Management Certain Relationships and Related Party Transactions Principal Stockholders Description of Capital Stock Shares Eligible for Future Sale Material United States Federal Income Tax Consequences to Non-U.S. Stockholders Underwriting Legal Matters Experts Where You Can Find More Information Index to Consolidated Financial Statements Intelius Inc. Consolidated Financial Statements Report of Independent Registered Public Accounting Firm Consolidated Balance Sheets Consolidated Statements of Operations Consolidated Statements of Stockholders' Equity Consolidated Statements of Cash Flows Notes to Consolidated Financial Statements Zaba, Inc. Financial Statements Independent Auditor's Report Balance Sheet Statement of Loss Statement of Stockholders' Deficit Statement of Cash Flows Notes to Financial Statements Intelius Inc. Pro Forma Financial Statements Unaudited Pro Forma Condensed Consolidated Statement of Operations Notes to Unaudited Pro Forma Condensed Consolidated Statement of Operations Table of Contents
Intelius - Official Site Background Check/Phone Verification ID Theft Protection, People Search. Franchise Investment Be Your Own Boss - Get Franchising For Moving Services. Visit Us Now!
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As filed with the Securities and Exchange Commission on October 19, 2009 Registration No. 333-148597
Form S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Intelius Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
7374
(Primary Standard Industrial Classification Code Number)
81-0590432
(I.R.S. Employer Identification Number)
500 108th Avenue NE, 25th Floor Bellevue, Washington 98004 (425) 974-6100
(Address, including zip code, and telephone number, including area code, of Registrants principal executive offices)
Naveen K. Jain Chief Executive Officer and President 500 108th Avenue NE, 25th Floor Bellevue, Washington 98004 (425) 974-6100
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to: Mike Liles, Jr., Esq. Walter M. Maas III, Esq. Karr Tuttle Campbell PS 1201 Third Avenue, Suite 2900 Seattle, Washington 98101 Telephone: (206) 223-1313 Facsimile: (206) 682-7100 Horace L. Nash, Esq. Laird H. Simons, III, Esq. James D. Evans, Esq. Fenwick & West LLP 801 California Street Mountain View, California 94041 Telephone: (650) 988-8500 Facsimile: (650) 938-5200
Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement. If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box: o If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
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The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to such Section 8(a), may determine.
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The information in this preliminary prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is declared effective. This preliminary prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Intelius Inc.
Shares
Common Stock
This is the initial public offering of Intelius Inc. We are offering shares of our common stock. We anticipate that the initial public offering price will be between $ and $ per share. We intend to apply to list our common stock on the New York Stock Exchange under the symbol II.
Investing in our common stock involves risk. See Risk Factors beginning on page 11.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
Per Share Total
Public offering price Underwriting discounts and commissions Proceeds, before expenses, to Intelius Inc. We have granted the underwriters the right to purchase up to to cover over-allotments.
$ $ $
$ $ $
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PROSPECTUS SUMMARY This summary highlights information contained elsewhere in this prospectus. You should read the following summary together with the more detailed information appearing elsewhere in this prospectus, including our consolidated financial statements and related notes, and the risk factors beginning on page 11, before deciding whether to purchase shares of our common stock. Unless the context otherwise requires, we use the terms Intelius, we, us and our in this prospectus to refer to Intelius Inc. and its subsidiaries. Overview Intelius is a leading online information commerce company that provides information services to consumers and enterprises. Our consumer information services include search services and monitoring services that help consumers find information about people, businesses and assets, and manage personal information security risks. Our enterprise information services principally include employment-related screening and management services. We generate revenues primarily from consumers who purchase our services on a pay-per-use or subscription basis, from companies that provide directory services to customers we have referred to them, and from online merchants that provide targeted advertising to our customers. We have developed a proprietary service delivery platform that provides customers with actionable information by applying our sophisticated analytics technology to publicly and commercially available data. Our accurate, timely and useful information services allow customers to make decisions about people, businesses and assets that are important to their private, professional and social lives. We sell information services through our network of owned and operated websites, including our primary website, www.Intelius.com. The Intelius network of websites was one of the top 100 most visited web properties in the United States for September 2009, according to comScore Media Metrix, a leading Internet audience measurement firm. We have established relationships with leading online portals and directories, including Yahoo! and AT&T, that market our services on their websites and direct visitors to our websites. Since our inception in January 2003, we have sold our information services to over nine million customer accounts. Our business has grown rapidly our revenues increased from $18.1 million in 2004, our first full year of operations, to $122.9 million in 2008, and from $63.9 million in the first six months of 2008 to $74.2 million in the first six months of 2009. Industry Overview The Internet has become an increasingly important medium for commerce and entertainment, and an important source of information about people and businesses. Consumers are increasingly using free and paid Internet services to contact acquaintances, gather information about people and businesses, and expand social and professional networks. The Internet also has a wealth of detailed information on commercial products and services, which has been a key contributor to the growth and penetration of the Internet as a retail commerce channel. As electronic commerce has grown and consumer media consumption has migrated online, advertisers have begun shifting a greater proportion of their marketing budgets to the Internet. In todays society, individuals and businesses often must make critical decisions based on limited or fragmentary information. Consumers and organizations are increasingly turning to the Internet for information services to make better-informed decisions about the people, businesses and assets with whom and with which they interact. Information services provide
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consumers and organizations with information to help them identify, monitor, interpret and respond to specific situations and their environment. Sources of Information A wealth of existing sources of information can be used to provide services that help identify and locate individuals and businesses, manage information security and mitigate personal safety risks. These sources fall into the following categories: Public Records. Public records consist of information that is maintained by government agencies and is generally available, such as property title and lien documents, birth and death certificates, business records and court records. Publicly Available Information. Publicly available information consists of online and offline information that is generally available but is not maintained by a government agency, such as names, addresses and telephone numbers of individuals and businesses, professional licensing and trade organization information, press releases and newspaper articles and content from blogs or social networking sites. Commercial Records. Commercial records consist of information that is maintained by enterprises and is available for purchase, such as mailing and telemarketing lists, phone connect and disconnect information, and business profile data. The Intelius Solution Key elements of our solution include: Broad Portfolio of Information Services. We offer over 100 information services that help consumers address potential safety and security concerns, manage and protect their personal information, and locate businesses, family, friends and colleagues. Compelling Value and User Experience. We provide a high-quality user experience by delivering valuable services, an intuitive user interface and dedicated customer service at affordable prices. Useful Information About People, Businesses and Assets. Our consumer information services are based on an extensive collection of information about people, businesses and assets that is dynamically accessed, managed, integrated, cleansed and validated in real time to provide accurate, timely and useful information. Proprietary Technologies and Extensible Platform. Our analytics technologies verify and augment multiple terabytes of data, usually in disparate formats and having varying degrees of accuracy and completeness, from a myriad of sources in order to make inferences and predictions based on this data. Security and System Reliability. By leveraging standards-based technologies, we have implemented industry-leading security measures and innovative security technologies to enhance customer confidence when they are using our services or providing information to us. Large Audience and Attractive Customer Base. In September 2009, the Intelius network of websites drew over 11.7 million unique visitors in the United States according to comScore Media Metrix. We believe that our customers and visitors to our websites appeal to advertisers because they have attractive demographic characteristics and have demonstrated the ability and willingness to purchase goods and services online.
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Our Strategy Our objective is to be the leading provider of information services. Our strategy for achieving this goal includes the following initiatives: Expand Our Customer Base. We intend to grow our customer base and reach a broader consumer audience by developing our existing distribution relationships with leading Internet companies, establishing new distribution relationships, and adding new websites to our website network that attract consumers of information services. Expand Our Portfolio of Service Offerings. We plan to continue to innovate, add new data sources and leverage our advanced technologies to develop new information service offerings for consumers. We also intend to optimize the way we offer these services, including through subscription offerings. Increase Revenue Per Customer. We seek to maximize our revenue per customer by up-selling, cross-selling and advertising. Increase Repeat Purchase Activity. We believe repeat customers are more likely to access our websites directly than are new customers, resulting in more profitable transactions. We intend to increase repeat purchase activity and customer loyalty by extending the breadth and quality of our service offerings and actively promoting our subscription service offerings. Enhance Our Brand. We intend to enhance our brand through advertising and marketing initiatives, including online advertising, print and outdoor advertising, trade shows, viral marketing and word-of-mouth. We also intend to continue to enhance our brand through quality of service initiatives, maintaining industry best practices and improving customer interfaces on our websites. Expand Through Strategic Acquisitions. We intend to pursue acquisitions of relevant domain names, as well as acquisitions of companies with complementary customers, technology and services, in order to augment our customer base, increase traffic to our websites, enhance awareness of our brand, add new services and provide new sources of revenues. Risk Factors We are subject to many risks and uncertainties that could materially harm our business or inhibit our strategic plans. Before investing in our common stock, you should carefully consider the following risks, which are described in greater detail in the section titled Risk Factors starting on page 11, and other information provided throughout this prospectus: Our quarterly operating results have fluctuated in the past and are likely to fluctuate in the future, and if we fail to meet or exceed the expectations of investors or any securities analysts, the trading price of our common stock may decline suddenly and substantially. Our limited operating history and occasional changes in our business strategy make it difficult to evaluate our business trends. Our operating results depend significantly on advertising revenues that we generate from a single advertising relationship. Losing this relationship could harm our operating results. Because we are a consumer-oriented company, customer complaints and occasional adverse publicity are an inherent aspect of our business. If we fail to manage customer complaints properly, or incur substantial adverse publicity, our revenues and operating results may be harmed and our stock price may decline.
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Our operating results depend significantly on our ability to acquire and use customers billing information. If the rules are changed to make it more difficult to acquire and use customers billing information provided for one transaction in another transaction for the same consumer, our operating results could be harmed. We are the subject of a Washington State Attorney General investigation regarding third-party subscription services advertised on our websites and our own identity protection subscription services, and we do not know what the outcome of the investigation may be. We are the subject of a Federal Trade Commission investigation regarding our compliance with the Fair Credit Reporting Act, and we do not know what the outcome of the investigation may be. Changes in the laws and regulations governing access to public information and the collection or sale of publicly available information could make it more difficult for us to conduct business. Our corporate image might be impaired as a result of negative publicity about our use of personal information in our service offerings, which could cause a corresponding drop in our stock price. We cannot assure you that any securities analysts will follow our company. Corporate Information We were incorporated in the state of Delaware in January 2003. Our principal executive offices are located at 500 108th Avenue NE, 25th Floor, Bellevue, Washington 98004 and our telephone number is (425) 974-6100. Our primary website address is www.Intelius.com. The information on, or that can be accessed through, our primary website or our other websites is not part of this prospectus. Intelius and the Intelius logo are our registered trademarks. This prospectus also includes trademarks that belong to third parties.
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RISK FACTORS Investing in our common stock involves a high degree of risk. You should carefully consider the risks and uncertainties described below, together with the other information in this prospectus, including our consolidated financial statements and related notes, before deciding whether to purchase shares of our common stock. If any of the following risks is realized, our business, financial condition, operating results and prospects could be materially and adversely affected. In that event, the price of our common stock could decline and you could lose part or all of your investment. We have organized these risks in the following important categories: Risks Related to Our Business, beginning immediately below; Risks Related to Litigation and Government Regulation beginning on page 24; and Risks Related to This Offering and Our Common Stock beginning on page 30. Risks Related to Our Business Our quarterly operating results have fluctuated in the past and are likely to fluctuate in the future, and if we fail to meet or exceed the expectations of investors or any securities analysts, the trading price of our common stock may decline suddenly and substantially. Our quarterly operating results have fluctuated in the past and are likely to fluctuate in the future as a result of many factors, many of which are outside of our control. For example, our net income of $4.8 million in the second quarter of 2008 decreased to a net loss of $6.3 million in the second quarter of 2009. If our quarterly operating results do not meet or exceed the expectations of investors or any securities analysts, the price of our common stock could decline suddenly and substantially. Factors that may cause our operating results to fluctuate include the following: the addition or termination of business relationships through which we acquire customers and generate revenue, or changes in the pricing or structures of these relationships; variable expenditures for customer acquisition; lower-than-anticipated levels of traffic to our websites, or reduced effectiveness in attracting customers that are likely to purchase our services; changes in federal, state or local laws and regulations affecting our business or the businesses of our advertisers or other vendors; investments in infrastructure and personnel to facilitate future growth; system downtimes or other service interruptions that prevent us from selling our services to our customers; unavailability of, or increased costs to obtain, data or other product components used to provide our information services; data or security breaches affecting consumer willingness to purchase our services; the failure of the entities that pay us fees to market their products or services or to generate current or projected levels of business; the failure of third parties to report accurately or timely the information on which our fees are based; judicial or governmental decisions, regulations, or settlements of disputes, such as our recent litigation settlement, that increase our costs or require us to change our business model; and 11
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By: /s/ NAVEEN K. JAIN Naveen K. Jain Chief Executive Officer and President Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 4 to the registration statement has been signed by the following persons in the capacities and on the dates indicated:
Signature Title Date
/s/ NAVEEN K. JAIN Naveen K. Jain /s/ PAUL T. COOK Paul T. Cook /s/ JAY T. CALDWELL Jay T. Caldwell WILLIAM A. OWENS * ARTHUR W. HARRIGAN, JR. * WILLIAM R. KERR * CHRIS A. KITZE * PETER W. CURRIE * /s/ RICHARD P. KARLGAARD Richard P. Karlgaard /s/ GEORGETTE MOSBACHER Georgette Mosbacher /s/ WILLIAM B. WHITE William B. White
Chief Executive Officer and President (principal executive officer), Director Chief Financial Officer (principal financial officer) Chief Accounting Officer (principal accounting officer) Chairman of the Board of Directors Director Director Director Director Director
October 16, 2009 October 16, 2009 October 16, 2009 October 16, 2009 October 16, 2009 October 15, 2009
Director
Director
II-8
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EXHIBIT 2
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industries can leverage this resource to learn about our solution, buy our products, or become an affiliate." In addition to the TalentWise solution, Intelius Screening Solutions plans to introduce other branded solutions specifically geared toward unique markets for FCRA-regulated products including, but not limited to, tenant screening and screening for home employment. For more information about TalentWise or Intelius Screening Solutions, visit www.talentwise.com.
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EXHIBIT 3
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Case 8:11-cv-00485-AG-AJW Document 466-3 Filed 02/20/12 Page 2 of 11 Page ID #:10968 CLOSED, MEDIATION
U.S. District Court Northern District of Alabama (Western) CIVIL DOCKET FOR CASE #: 7:08-cv-01062-SLB
Moore v. Intelius, Inc et al Assigned to: Chief Judge Sharon Lovelace Blackburn Cause: 15:1681 Fair Credit Reporting Act Date Filed: 06/16/2008 Date Terminated: 07/08/2009 Jury Demand: Plaintiff Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question
Plaintiff Shannon Moore represented by Walter A Blakeney BROCK & STOUT LLC PO Drawer 311167 Enterprise, AL 36331 334-671-2044 Fax: 334-671-2689 Email: walter@circlecitylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
V. Defendant Intelius, Inc represented by Laura C Nettles LLOYD, GRAY, WHITEHEAD & MONROE, PC 2501 20th Place South, Suite 300 Birmingham, AL 35223 205-967-8822 Fax: 205-967-2830 Email: lnettles@lgwmlaw.com TERMINATED: 09/18/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael D Freeman BALCH & BINGHAM LLP 1901 Sixth Avenue North (35203) PO Box 306 Birmingham, AL 35201-0306 251-8100 Fax: 226-8799 Email: mfreeman@balch.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Case 8:11-cv-00485-AG-AJW Document 466-3 Filed 02/20/12 Page 3 of 11 Page ID #:10969 Amelia Killebrew Steindorff BALCH & BINGHAM LLP PO Box 306 Birmingham, AL 35201-0306 205-251-8100 Fax: 205-488-5613 Email: asteindorff@balch.com ATTORNEY TO BE NOTICED Defendant Intellisense, LLC represented by Laura C Nettles (See above for address) TERMINATED: 09/18/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael D Freeman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Amelia Killebrew Steindorff (See above for address) ATTORNEY TO BE NOTICED Date Filed 06/16/2008 06/16/2008 06/18/2008 06/18/2008 06/23/2008 06/24/2008 07/10/2008 07/11/2008 07/18/2008 # Docket Text
1 COMPLAINT against Intelius, Inc, Intellisense, LLC (Filing fee $ 350. rec # 200 247590), filed by Shannon Moore.(KAM, ) (Entered: 06/18/2008) 2 Request for service by certified mail filed by Shannon Moore. (KAM, ) (Entered: 06/18/2008) 3 Summons Issued as to Intellisense, LLC mailed certified mail. (KAM, ) (Entered: 06/18/2008) 4 Summons Issued as to Intelius, Inc mailed certified mail (KAM, ) (Entered: 06/18/2008) 5 SUMMONS Returned Executed by Shannon Moore. Intellisense, LLC served on 6/20/2008, answer due 7/10/2008. (KAM, ) (Entered: 06/25/2008) 6 SUMMONS Returned Executed by Shannon Moore. Intelius, Inc served on 6/21/2008, answer due 7/11/2008. (KAM, ) (Entered: 06/26/2008) 7 MOTION for Extension of Time to File Answer to Complaint by Intelius, Inc, Intellisense, LLC. (Nettles, Laura) (Entered: 07/10/2008) ORDER granting 7 Motion for Extension of Time to Answer. Signed by Chief Judge Sharon Lovelace Blackburn on 07/11/2008. (SDB, ) (Entered: 07/11/2008) 8 ANSWER to Complaint by Intelius, Inc, Intellisense, LLC.(Steindorff, Amelia) (Entered: 07/18/2008)
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Case 8:11-cv-00485-AG-AJW Document 466-3 Filed 02/20/12 Page 4 of 11 Page ID #:10970 07/22/2008 9 MOTION to Withdraw by Intelius, Inc, Intellisense, LLC. (Nettles, Laura) (Entered: 07/22/2008) 07/23/2008 07/28/2008 07/30/2008 ORDER granting 9 Motion to Withdraw. Signed by Chief Judge Sharon Lovelace Blackburn on 07/23/2007. (SDB, ) (Entered: 07/23/2008) 10 Corporate Disclosure Statement by Intelius, Inc, Intellisense, LLC. (Steindorff, Amelia) (Entered: 07/28/2008) 11 ORDER Scheduling Conference set for 9/17/2008 02:00 PM before Chief Judge Sharon Lovelace Blackburn.. Signed by Chief Judge Sharon Lovelace Blackburn on 7/30/2008. (Attachments: # 1 16b instructions)(KAM, ) (Entered: 07/30/2008) 12 Corporate Disclosure Statement by Shannon Moore. (Blakeney, Walter) (Entered: 08/04/2008) 13 REPORT of Rule 26(f) Planning Meeting. (Blakeney, Walter) (Entered: 09/08/2008) 14 REPORT of Rule 26(f) Planning Meeting. (Blakeney, Walter) (Entered: 09/08/2008) 15 ORDER scheduling that certain time limits apply as set out in this order; Discovery due by 4/10/2009. Dispositive Motions due by 5/1/2009. Pretrial needed; mediation 1/19/2009; Jury Trial set for 7/27/2009 09:00 AM before Chief Judge Sharon Lovelace Blackburn.. Signed by Chief Judge Sharon Lovelace Blackburn on 9/19/2008. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(KAM, ) (Entered: 09/19/2008) 16 ORDER regarding attorney and non-attorney time records. Signed by Chief Judge Sharon Lovelace Blackburn on 9/19/2008. (KAM, ) (Entered: 09/19/2008) 17 MOTION for Protective Order by Intelius, Inc, Intellisense, LLC. (Steindorff, Amelia) (Entered: 12/01/2008) 18 ORDER re 17 MOTION for Protective Order, any opposition to dfts' motion is due by 12/16/2008. Signed by Chief Judge Sharon Lovelace Blackburn on 12/2/2008. (KSS, ) (Entered: 12/02/2008) 19 RESPONSE to Motion re 17 MOTION for Protective Order filed by Shannon Moore. (Blakeney, Walter) (Entered: 12/16/2008) 20 REPLY to re 17 Plaintiff's Response to Defendant's Motion for Protective Order filed by Intelius, Inc, Intellisense, LLC. (Steindorff, Amelia) (Entered: 12/19/2008) 21 ORDER REFERRING CASE to Mediation.. Signed by Chief Judge Sharon Lovelace Blackburn on 1/20/2009. (KAM, ) (Entered: 01/20/2009) 22 Joint MOTION for Reconsideration / Joint Request for Reconsideration of Mediation by Shannon Moore. (Blakeney, Walter) (Entered: 01/29/2009) 23 ORDER granting 22 Motion for Reconsideration; the order referring this matter to mediation is V ACATED. Signed by Chief Judge Sharon Lovelace Blackburn on 1/29/2009. (KAM, ) (Entered: 01/29/2009) 24 MOTION to Enforce Settlement Agreement by Intelius, Inc, Intellisense, LLC. (Steindorff, Amelia) (Entered: 02/20/2009) 25 ORDER Setting Hearing on Motion 24 MOTION to Enforce Settlement Agreement : Motion Hearing set for 4/13/2009 11:00 AM before Chief Judge Sharon Lovelace
02/20/2009 02/24/2009
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Case 8:11-cv-00485-AG-AJW Document 466-3 Filed 02/20/12 Page 5 of 11 Page ID #:10971 Blackburn.. Signed by Chief Judge Sharon Lovelace Blackburn on 2/24/2009. (KAM, ) (Entered: 02/24/2009) 02/27/2009 26 ORDER Setting Hearing on Motion 24 MOTION to Enforce Settlement Agreement : Motion Hearing set for 4/28/2009 01:00 PM before Chief Judge Sharon Lovelace Blackburn.. Signed by Chief Judge Sharon Lovelace Blackburn on 2/26/2009. (KAM, ) (Entered: 02/27/2009) 27 SETTLEMENT AGREEMENT Defendants' Affirmation of Settlement by Intelius, Inc, Intellisense, LLC. (Steindorff, Amelia) (Entered: 04/29/2009) 28 ORDER that the court has been advised that the parties have reached a settlement agreement; in addition, dft's have stipulated that the pla is the prevailing party entitling him to receive atty fees; Plaintiff shall file his motion for atty fees by 6/11/09; any response in opposition is due by 6/25/09;pla's reply is due by 7/9/09; The court will hold a hearing on the fee petition on 7/16/09 at 10:00am. Signed by Chief Judge Sharon Lovelace Blackburn on 5/28/2009. (KAM, ) (Entered: 05/28/2009) 29 MOTION for Attorney Fees by Shannon Moore. (Blakeney, Walter) (Entered: 06/11/2009) 30 AFFIDAVIT re 29 MOTION for Attorney Fees / Affidavit of Walter A. Blakeney in Support of Motion for Attorney Fees by Shannon Moore. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Appendix Certification)(Blakeney, Walter) (Entered: 06/11/2009) 31 NOTICE by Intelius, Inc, Intellisense, LLC Notice of Payment (Steindorff, Amelia) (Entered: 06/16/2009) 32 STIPULATION of Dismissal by Shannon Moore. (Blakeney, Walter) (Entered: 07/07/2009) 33 ORDER that this action is DISMISSED WITH PREJUDICE, with each party to bear their own costs. Signed by Chief Judge Sharon Lovelace Blackburn on 7/8/09. (ASL ) (Entered: 07/08/2009)
04/29/2009 05/28/2009
06/11/2009 06/11/2009
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U.S. DISTRICT COURT N.D. OF ALABAMA
} } } } } } } } } } ORDER
This case is before the court on defendants Affirmation of Settlement. (Doc. 27.) 1 Plaintiff initiated this suit under the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq. (Doc. 1.) The court has been advised that the parties in this case have reached a settlement agreement. In addition to agreeing upon a fixed settlement agreement with plaintiff, defendants have stipulated that plaintiff is the prevailing party in this case, (doc. 27), entitling him to receive attorneys fees under 15 U.S.C. 1681n & 1681o. Accordingly, plaintiff shall submit his petition for attorneys fees on or before June 11, 2009. Plaintiff is advised to follow the courts Order Regarding Attorney and Non-Attorney Time Records. (Doc. 16.) Any response in opposition to plaintiffs fee petition is due on or before June 25, 2009. Plaintiffs reply, if any, is due on or before
Reference to a document number, [Doc. ___], refers to the number assigned to each document as it is filed in the courts record.
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July 9, 2009. The court will hold a hearing on the fee petition at 10:00 a.m. on July 16, 2009.
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U.S. DISTRICT COURT N.D. OF ALABAMA
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Case 8:11-cv-00485-AG-AJW Document 466-331 Filed 02/20/12 Page 101 of 2 Page ID FILED Case 7:08-cv-01062-SLB Document Filed 06/16/09 Page of 11 2009 Jun-16 AM 10:21 #:10976
U.S. DISTRICT COURT N.D. OF ALABAMA
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EXHIBIT 4
Liberi, et al, Plaintiffs Request for Judicial Notice
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U.S. District Court U.S. District Court for the Northern District of Oklahoma (Tulsa) CIVIL DOCKET FOR CASE #: 4:09-cv-00217-TCK-PJC
Williams v. Intellisense, LLC et al Assigned to: Judge Terence Kern Referred to: Magistrate Judge Paul J Cleary Cause: 15:1681 Fair Credit Reporting Act Plaintiff Anthony N Williams represented by Fred Everett Stoops , Sr Stoops & LaCourse, PLLC 8801 S YALE AVE STE 420 TULSA, OK 74137 918-744-7100 Fax: 918-477-2299 Email: fstoops@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED Patrick Hale McCord Stoops & LaCourse, PLLC 8801 S YALE AVE STE 420 TULSA, OK 74137 918-744-7100 Fax: 918-477-2299 Email: pmccord@stoopslacourse.com LEAD ATTORNEY ATTORNEY TO BE NOTICED V. Defendant Intellisense, LLC represented by Larry Doyle Henry Rhodes Hieronymus Jones Tucker & Gable P O BOX 21100 TULSA, OK 74121-1100 918-582-1173 Fax: 918-592-3390 Email: lhenry@rhodesokla.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Michelle B Skeens Holden & Carr (Tulsa) Date Filed: 04/13/2009 Date Terminated: 02/09/2010 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Diversity
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Case 8:11-cv-00485-AG-AJW Document 466-4 Filed 02/20/12 Page 3 of 8 Page ID #:10980 15 E 5TH ST STE 3900 TULSA, OK 74103 918-295-8888 Fax: 918-295-8889 Email: hm@holdenoklahoma.com TERMINATED: 06/01/2009 LEAD ATTORNEY Defendant Intelius, Inc. represented by Larry Doyle Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Michelle B Skeens (See above for address) TERMINATED: 06/01/2009 LEAD ATTORNEY Date Filed 04/13/2009 04/13/2009 04/13/2009 04/13/2009 05/01/2009 05/14/2009 05/14/2009 # Docket Text
1 CIVIL COVER SHEET by Anthony N Williams (s-srb, Dpty Clk) (Entered: 04/14/2009) 2 COMPLAINT against all defendants by Anthony N Williams (s-srb, Dpty Clk) (Entered: 04/14/2009) 3 SUMMONS Issued by Court Clerk as to Intellisense, LLC, Intelius, Inc. (s-srb, Dpty Clk) (Entered: 04/14/2009) 4 FILING FEES Paid in Full by Anthony N Williams (s-srb, Dpty Clk) (Entered: 04/14/2009) 5 SUMMONS Returned Executed re: Intelius, Inc. (Re: 2 Complaint ) by Anthony N Williams (Stoops, Fred) (Entered: 05/01/2009) 6 ATTORNEY APPEARANCE by Larry Doyle Henry on behalf of Intellisense, LLC, Intelius, Inc. (Henry, Larry) (Entered: 05/14/2009) 7 Unopposed MOTION for Extension of Time to Answer by Intellisense, LLC, Intelius, Inc. (Henry, Larry) Modified on 5/15/2009 to correct title of event (lml, Dpty Clk). (Entered: 05/14/2009) 8 MINUTE ORDER by Court Clerk, directing Intellisense, LLC to file a Corporate Disclosure Statement pursuant to FRCvP 7.1 within five (5) days of this order, if they have not already done so. The parties shall use the form entitled Corporate Disclosure Statement available on the Courts website (please do not refile if already filed on non-court form unless directed to do so). If you have already filed your Corporate Disclosure Statement in this case, you are reminded to file a Supplemental Corporate Disclosure Statement within a reasonable time of any change in the information that the statement requires. (sjm, Dpty Clk) (Entered: 05/15/2009)
05/15/2009
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Case 8:11-cv-00485-AG-AJW Document 466-4 Filed 02/20/12 Page 4 of 8 Page ID #:10981 05/15/2009 9 MINUTE ORDER by Court Clerk, directing Intelius, Inc. to file a Corporate Disclosure Statement pursuant to FRCvP 7.1 within five (5) days of this order, if they have not already done so. The parties shall use the form entitled Corporate Disclosure Statement available on the Courts website (please do not refile if already filed on non-court form unless directed to do so). If you have already filed your Corporate Disclosure Statement in this case, you are reminded to file a Supplemental Corporate Disclosure Statement within a reasonable time of any change in the information that the statement requires. (sjm, Dpty Clk) (Entered: 05/15/2009) 05/15/2009 NOTICE of Docket Entry Modification; Error: This was filed using the incorrect event (Motion to Accelerate/Extend/Reset Hearings/Deadlines); Correction: Edited docket text to reflect correct event (Re: 7 MOTION for Extension of Time to Answer ) (lml, Dpty Clk) (Entered: 05/15/2009) 10 MINUTE ORDER by Judge Terence Kern Defendants are granted an extension of time to answer or otherwise respond to the Complaint by June 8, 2009 ; granting 7 Motion for Extension of Time to Answer (Re: 2 Complaint ) (vah, Chambers) (Entered: 05/18/2009) 11 CORPORATE DISCLOSURE STATEMENT by Intellisense, LLC, Intelius, Inc. (Henry, Larry) (Entered: 05/19/2009) 12 CORPORATE DISCLOSURE STATEMENT (identifying: Corporate Parent Intelius, Inc. for Intelius, Inc., Intellisense, LLC) by Intellisense, LLC, Intelius, Inc. (Henry, Larry) (Entered: 05/19/2009) 13 SPECIAL APPEARANCE by Michelle B Skeens on behalf of Intellisense, LLC, Intelius, Inc. (Skeens, Michelle) (Entered: 05/26/2009) 14 MOTION for Extension of Time to Answer (submitted as part of Doc # 13 ) (Re: 2 Complaint ) by Intellisense, LLC, Intelius, Inc. (tjc, Dpty Clk) (Entered: 05/27/2009) NOTICE of Docket Entry Modification; Error: This is a multi-event document, which is not allowed in CM/ECF; Correction: Filed the second event as Document # 14 (Re: 13 Appearance - Special ) (tjc, Dpty Clk) (Entered: 05/27/2009) 15 MINUTE ORDER by Judge Terence Kern Defendants have until June 15, 2009 to answer or otherwise respond to Complaint ; granting 14 Motion for Extension of Time to Answer (Re: 2 Complaint ) (vah, Chambers) (Entered: 05/27/2009) 16 ORDER by Judge Terence Kern, directing parties to file joint status report( Status Report due by 7/1/2009) (cds, Dpty Clk) (Entered: 06/01/2009) 17 MOTION to Withdraw Attorney(s) Michelle B. Skeens by Intellisense, LLC, Intelius, Inc. (Skeens, Michelle) (Entered: 06/01/2009) 18 MINUTE ORDER by Judge Terence Kern ; terminating attorney Michelle B Skeens ; granting 17 Motion to Withdraw Attorney(s) (vah, Chambers) (Entered: 06/01/2009) 19 ANSWER (Re: 2 Complaint ) by Intellisense, LLC, Intelius, Inc. (Henry, Larry) (Entered: 06/15/2009) 20 JOINT STATUS REPORT by Anthony N Williams, Intelius, Inc., Intellisense, LLC (Stoops, Fred) Modified on 7/2/2009 to add defendants as filers (sac, Dpty Clk). (Entered: 07/01/2009)
05/18/2009
05/19/2009 05/19/2009
05/27/2009
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Case 8:11-cv-00485-AG-AJW Document 466-4 Filed 02/20/12 Page 5 of 8 Page ID #:10982 07/02/2009 NOTICE of Docket Entry Modification; Error: not all filers were selected; Correction: added defendants as filers (Re: 20 Joint Status Report per Local Rule 16.1 ) (sac, Dpty Clk) (Entered: 07/02/2009) 07/08/2009 21 SCHEDULING ORDER by Judge Terence Kern, setting/resetting scheduling order date(s): ( Discovery due by 11/30/2009, Dispositive Motions due by 12/14/2009, Proposed Pretrial Order due by 3/31/2010, Pretrial Conference set for 4/6/2010 at 02:30 PM before Judge Terence Kern, Jury Trial set for 4/19/2010 at 09:30 AM before Judge Terence Kern) (cds, Dpty Clk) (Entered: 07/08/2009) 22 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) by Anthony N Williams (McCord, Patrick) (Entered: 10/28/2009) 23 SETTLEMENT CONFERENCE ORDER by Magistrate Judge Paul J Cleary, setting/resetting deadline(s)/hearing(s): before ASJ Martin A. Frey ( Settlement Conference set for 12/8/2009 at 01:30 PM before Adjunct Judge) (kjp, Dpty Clk) (Entered: 10/29/2009) 24 MINUTE ORDER by Judge Terence Kern (Separate Scheduling Order to be Entered) ; granting 22 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (cds, Dpty Clk) (Entered: 11/05/2009) 25 SCHEDULING ORDER by Judge Terence Kern, setting/resetting scheduling order date(s): ( Discovery due by 1/29/2010, Dispositive Motions due by 2/12/2010, Proposed Pretrial Order due by 5/31/2010, Pretrial Conference set for 6/9/2010 at 01:30 PM before Judge Terence Kern, Jury Trial set for 6/21/2010 at 09:30 AM before Judge Terence Kern) (cds, Dpty Clk) (Entered: 11/05/2009) 26 Joint MOTION to Accelerate/Extend/Reset Settlement Deadline(s)/Conference by Intellisense, LLC, Intelius, Inc., Anthony N Williams (Henry, Larry) Modified on 12/2/2009 to add plaintiff as filer (sac, Dpty Clk). (Entered: 12/01/2009) ***Motion(s) Referred to Maigstrate Cleary (Re: 26 Joint MOTION to Accelerate/Extend/Reset Settlement Deadline(s)/Conference ) (sac, Dpty Clk) (Entered: 12/02/2009) NOTICE of Docket Entry Modification; Error: not all filers were selected; Correction: added plaintiff as a filer (Re: 26 Joint MOTION to Accelerate/Extend/Reset Settlement Deadline(s)/Conference ) (sac, Dpty Clk) (Entered: 12/02/2009) 27 ORDER by Magistrate Judge Paul J Cleary Rescheduling Settlement Conference ; setting/resetting deadline(s)/hearing(s): before ASJ Martin A. Frey ( Settlement Conference set for 2/25/2010 at 01:30 PM before Adjunct Judge); granting 26 Motion to Accelerate/Extend/Reset Settlement Deadline(s)/Conference (kjp, Dpty Clk) (Entered: 12/04/2009) 28 ORDER by Magistrate Judge Paul J Cleary striking Settlement Conference set for 2/25/2010; litigation has settled, setting/resetting deadline(s)/hearing(s): ( Dismissal Papers due by 2/11/2010) (kjp, Dpty Clk) (Entered: 02/01/2010) 29 STIPULATION of Dismissal, closing case, by Anthony N Williams, Intellisense, LLC, Intelius, Inc. (McCord, Patrick) (Entered: 02/09/2010) ***Civil Case Terminated (see document number 29 ) (lml, Dpty Clk) (Entered: 02/10/2010)
10/28/2009 10/29/2009
11/05/2009
11/05/2009
12/01/2009
12/01/2009
12/02/2009
12/04/2009
02/01/2010
02/09/2010 02/09/2010
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Case 4:09-cv-00217-TCK-PJC Document 28 Filed in USDC ND/OK on 02/01/10 Page 1 of 1 Case 8:11-cv-00485-AG-AJW Document 466-4 Filed 02/20/12 Page 7 of 8 Page ID #:10984
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA ANTHONY N. WILLIAMS, Plaintiff, vs. INTELLISENSE, LLC., et al., Defendant(s). ) ) ) ) ) ) ) ) )
Case Number:09-CV-217-TCK-PJC
SETTLEMENT CONFERENCE Per the advise of Adjunct Settlement Judge Martin A. Frey, Defendants Counsel has advised that the Parties have reached a settlement herein. Based on this representation, the February 25, 2010 Settlement Conference is hereby stricken. Within ten (10) days of the date hereof, the Plaintiff and Defendant shall file the appropriate dismissal documents with the Court. SO ORDERED this the 1st day of February, 2010.
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA ANTHONY N. WILLIAMS, Plaintiff, vs. INTELLISENSE, LLC., et al., Defendant(s). ) ) ) ) ) ) ) ) )
Case Number:09-CV-217-TCK-PJC
SETTLEMENT CONFERENCE Per the advise of Adjunct Settlement Judge Martin A. Frey, Defendants Counsel has advised that the Parties have reached a settlement herein. Based on this representation, the February 25, 2010 Settlement Conference is hereby stricken. Within ten (10) days of the date hereof, the Plaintiff and Defendant shall file the appropriate dismissal documents with the Court. SO ORDERED this the 1st day of February, 2010.
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EXHIBIT 5
Liberi, et al, Plaintiffs Request for Judicial Notice
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FILED Case 8:11-cv-00485-AG-AJW Document 466-5 Filed 02/20/12 Page 2 of Court of Appeals United States 40 Page ID Appellate Case: 08-8003 Document: 01018090564 Date Filed: 06/29/2009 Page: 1 #:10987 Tenth Circuit
FEDERAL TRADE COMMISSION, Plaintiff - Appellee, v. ACCUSEARCH INC., d/b/a Abika.com; JAY PATEL, Defendants - Appellants, _____________________ JENNIFER STODDART, Privacy Commissioner of Canada, Amicus Curiae. No. 08-8003
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING (D.C. NO. 2:06-CV-00105-WFD)
Deborah L. Roden (Gay Woodhouse with her on the briefs) of Gay Woodhouse Law Office, P.C., Cheyenne, Wyoming, for Defendants - Appellants. Lawrence DeMille-Wagman, Attorney, Federal Trade Commission, Washington, D.C., (William Blumenthal, General Counsel, John F. Daly, Deputy General Counsel for Litigation, Federal Trade Commission, Washington, D.C.; and Tracy S. Thorleifson, Kial S. Young, Federal Trade Commission, Seattle, Washington, with her on the brief), for Plaintiff - Appellee. Edward R. McNicholas, Sidley Austin LLP, Washington, DC, filed an amicus curiae brief for Jennifer Stoddart, Privacy Commissioner of Canada, in support of Plaintiff - Appellee.
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Abika.com is a website that has sold various personal data, including telephone records. The Federal Trade Commission (FTC) brought suit against the operator of the website, Accusearch Inc., and its president and owner, Jay Patel (collectively, Accusearch), to curtail Accusearchs sale of confidential information and to require it to disgorge its profits from the sale of information in telephone records. The FTC alleged that Accusearchs trade in telephone records (which are protected from disclosure under 702 of the Telecommunications Act of 1996, 47 U.S.C. 222 (2006)) constituted an unfair practice in violation of 5(a) of the Federal Trade Commission Act (FTCA), 15 U.S.C. 45(a) (2006). The district court granted the FTC summary judgment, see FTC v. Accusearch, Inc., No. 06-CV-105-D, 2007 WL 4356786, at *10 (D. Wyo. Sept. 28, 2007), and after further briefing entered an injunction restricting Accusearchs future trade in telephone records and other personal information. On appeal Accusearch contends that (1) the FTCs unfair-practice claim should have been dismissed because Accusearch broke no law and because the FTC had no authority to enforce the Telecommunications Act; (2) it was immunized from suit by the protections provided websites in the Communications
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Decency Act (CDA), 47 U.S.C. 230 (2006); and (3) the injunction is unnecessary to prevent it from resuming trade in telephone records and is unconstitutionally overbroad. Exercising jurisdiction under 28 U.S.C. 1291, we reject each of Accusearchs contentions and affirm. First, conduct may constitute an unfair practice under 5(a) of the FTCA even if it is not otherwise unlawful, and the FTC may pursue an unfair practice even if the practice is facilitated by violations of a law not administered by the FTC, such as the Telecommunications Act. Second, Accusearchs claimed defense under the CDA fails because it acted as an information content provider (and thus is not entitled to immunity) with respect to the information that subjected it to liability under the FTCA. See 47 U.S.C. 230(f)(3). Finally, the injunction was proper despite Accusearchs prior halt to its unfair practices and the possibility that the resumption of those practices would be criminally prosecuted; and Accusearch waived in district court its claim on appeal that the injunction is overbroad. I. BACKGROUND A. Abika.com
Although the parties characterize the Abika.com website differently, they do not dispute the essential aspects of its operation. Any person interested in Abika.coms services could access the website through a search engine or by typing its address into an Internet browser. A visitor to the website would first see its homepage, which displayed various categories of information that could be
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searched. The record contains one printout of the website from December 20, 2006, and one from November 27, 2007. The printouts show that some searches advertised on the homepage targeted information generally contained in government records, such as court dockets, sex offender records, and Tax . . . Liens. Aplts. App., Vol. 4 at 1313; id. Vol. 5 at 1429. Other search categories related to intimate personal information, such as Romantic Preferences, Personality traits, and Rumors. Id. Vol. 4 at 1313; id. Vol. 5 at 1429. Accusearch stresses on appeal that the search services offered on Abika.com were primarily services provided by third-party researchers, who were required by Accusearch to provide assurances that they would perform their work in accordance with applicable law. The researchers had no direct contact with Abika.coms customers. As Accusearch explains, all information passed between [customer] and researcher went through Abika.com, as an intermediary. Aplts. Reply Br. at 3. In placing a search order, a customer paid Accusearch an administrative search fee, Aplts. App., Vol. 4 at 1246, and selected the type of search desired, not a specific researcher or a search identified with a specific researcher. Accusearch would forward the search request to a researcher who could fulfill it. After completing a search, the researcher would send the results to Accusearch and bill Accusearch directly. Accusearch would then email the results to the customer and post them on the customers Abika.com account. A customer
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could know that a third-party researcher was involved in a transaction only by reading boilerplate contained on the website and in Accusearchs email correspondence. And even then, the customer was not provided contact information for any researcher. B. Provision of Telephone Records
From February 2003 to January 2006 the Abika.com website advertised access to personal telephone records. The website stated that its customers could acquire details of incoming or outgoing calls from any phone number, prepaid calling card or Internet Phone, and that Phone searchers are available for every country of the world. Id. Vol. 4 at 124647 (internal quotation marks omitted). Abika.coms customers could purchase both cellphone and landline records. The website specified that cellphone records would detail the numbers dialed from a particular cellphone and generally include the date, time and duration of the calls made. Id. Vol. 2 at 475. Landline records would include the same information, save for the specific time at which calls were made. Acquisition of this information would almost inevitably require someone to violate the Telecommunications Act or to circumvent it by fraud or theft. The Act forbids telecommunications carriers from disclosing telephone records absent customer consent or the applicability of one of several exceptions. See 47 U.S.C. 222(c)(d). The Act provides as follows:
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Except as required by law or with the approval of the customer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, disclose, or permit access to individually identifiable customer proprietary network information in its provision of (A) the telecommunications service from which such information is derived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories. Id. 222(c)(1). (We note the additional exceptions below. 1) There is no dispute that the telephone records available on Abika.com constituted individually identifiable customer proprietary network information within the meaning of 222, 2 or, more generally, that the Telecommunications Act barred disclosure of those records by telecommunications carriers. Although Accusearch (remarkably, in our view) maintained that it relied in good faith on its researchers commitment to obey the law in acquiring information, it represented that it ceased offering
The Act does not forbid telecommunications carriers from disclosing telephone records to (1) initiate, render, bill, and collect for telecommunications services; (2) protect telecommunications carriers and customers from the fraudulent, abusive, or unlawful use of, or subscription to, telecommunications services; (3) provide certain telemarketing, referral, or administrative services to the customer; and (4) provide call location information to (a) public-safety personnel responding to a users call, (b) legal guardians and family members in emergency situations involving risk of death or serious physical harm, and (c) providers of information or database management services used to assist in the provision of emergency services. 47 U.S.C. 222(d). Customer proprietary network information is defined to include information contained in bills and information that relates to the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service subscribed to by any customer. 47 U.S.C. 222(h)(1).
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telephone records in January 2006 after learning that a subsidiary of one of its researchers possibly obtained telephone data fraudulently. C. Procedural History
The FTC filed suit against Accusearch on May 1, 2006, roughly four months after Accusearch ceased to offer telephone records. The complaint alleged that telephone records are protected against disclosure by the Telecommunications Act and that trade in such records constitutes an unfair practice in violation of 5(a) of the FTCA, 15 U.S.C. 45(a). Accusearch responded with a motion to dismiss, contending that the complaint failed to state a claim because the Telecommunications Act applies only to telephone carriers and because selling confidential telephone records was not otherwise unlawful. The district court denied the motion and Accusearch filed an answer. After conducting discovery the parties each moved for summary judgment. The FTC argued that Accusearchs practices were unfair under the FTCA as a matter of law. Accusearch countered that it was immunized by the CDA, which, broadly speaking, protects Internet services from liability as publishers with respect to content provided by others. See 47 U.S.C. 230(c). Accusearch contended that it was entitled to this immunity because the FTCs claim treated it as the publisher of telephone records that were provided by others (that is, telephone companies and independent researchers) and traded over Abika.com. The district court granted the FTCs motion and rejected Accusearchs assertion of
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immunity. The court ruled that the FTC had established each element of its unfairpractice claim. And it concluded that Accusearch was not entitled to statutory immunity because it had participated in the creation or development of the information delivered to customers, Accusearch, 2007 WL 4356786, at *6 (brackets and internal quotation marks omitted), and because the FTCs claim did not treat Accusearch as a mere publisher of those records, id. at *5 (internal quotation marks omitted). It found that Accusearchs claim of blissful ignorance [of its researchers misconduct] is simply not plausible in light of the facts of this case, id. at *7, explaining that [e]ven if [Accusearch was] unaware at the outset how these records were obtained, emails documenting the ordering process between Accusearch and its vendors clearly indicated that underhanded means were used to obtain the records, id. After further briefing the district court entered an injunction restricting Accusearchs future trade in telephone records and other personal information. Accusearch was also ordered, among other things, to disgorge $199,692.71 in profits from the sale of telephone-record information. D. Claims on Appeal
Accusearch contends that the district court should have granted judgment in its favor because (1) it broke no law, (2) the FTC acted outside its authority by attempting to enforce the Telecommunications Act, and (3) it was entitled to immunity under the CDA. Accusearch also challenges the propriety and scope of the injunction. Prohibitory injunctive relief was unnecessary, argues Accusearch,
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because it voluntarily ceased dealing in telephone records before the FTC filed its complaint, and because resumption of those activities would subject it to newly enacted criminal sanctions regardless of the injunction. Accusearch further asserts that the injunction improperly restricts its ability to deal in consumer data other than telephone records. This overbreadth, we are told, violates Accusearchs dueprocess, free-speech, and equal-protection rights. II. DISCUSSION A. Unfair-Practice Claim
The FTCA prohibits unfair or deceptive acts or practices in or affecting commerce, 15 U.S.C. 45(a)(1), and vests the FTC with authority to prevent such practices by issuing cease-and-desist orders, id. 45(b), by prescribing rules, id. 57a(a)(1)(B), and by seeking injunctive relief in federal district court, id. 53(b). To be unfair, a practice must be one that [1] causes or is likely to cause substantial injury to consumers [2] which is not reasonably avoidable by consumers themselves and [3] not outweighed by countervailing benefits to consumers or to competition. Id. 45(n). The FTC argued below that Accusearchs practice of offering consumer telephone records over the Internet satisfied all three requirements. First, the FTC contended that substantial injury was caused by the subversion of the Telecommunications Act; it argued that consumers whose telephone records were obtained through Abika.com suffered emotional harm (sometimes from being
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stalked or otherwise harassed) and often incurred substantial costs in changing telephone providers to prevent future privacy breaches. Second, the FTC contended that because Accusearchs researchers could override password encryption, consumers could not protect themselves by reasonable means but only by extreme measures such as ceasing telephonic communication altogether. Third, the FTC contended that the unconsented-to disclosure of telephone records provided no countervailing benefits to consumers. On appeal Accusearch does not challenge this analysis of the unfair-practice elements. Its arguments relate only to the FTCs reliance on the Telecommunications Act. One argument is that the FTC could not rely on the Act because it applied solely to telecommunications carriers, not to Accusearch or its researchers; during the period at issue, 3 contends Accusearch, there was no law preventing a third-party from collecting telephone records. Aplts. Am. Br. at 61. We reject the argument. Its premise appears to be that a practice cannot be an unfair one unless it violates some law independent of the FTCA. But the FTCA imposes no such constraint. See 15 U.S.C. 45(n) (setting out elements of an unfair practice). On the contrary, the FTCA enables the FTC to take action against unfair practices that have not yet been contemplated by more specific laws. See Spiegel, Inc. v. FTC, 540 F.2d 287, 29194 (7th Cir. 1976) (catalog retailers After Accusearch ceased offering telephone records, Congress enacted the Telephone Records and Privacy Protection Act of 2006, which criminalizes the sale and receipt of confidential telephone records. See 18 U.S.C. 1039.
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practice of suing customers in distant forum was unfair even if practice was perfectly proper under state law); 1 Stephanie W. Kanwit et al., Federal Trade Commission 4.5 (2008) (The FTC is unfettered and free to proceed against practices not previously considered unlawful.). To be sure, violations of law may be relevant to the unfairness analysis. See 15 U.S.C. 45(n) (In determining whether an act or practice is unfair, the Commission may consider established public policies as evidence to be considered with all other evidence. Such public policy considerations may not serve as a primary basis for such determination.); Stephen Calkins, FTC Unfairness: An Essay, 46 Wayne L. Rev. 1935, 1970 (2000) (discussing FTC enforcement actions in which claim that practice was unfair was predicated on violation of a law other than the FTCA). Here, for example, the FTC alleged that the substantial-injury element of an unfair practice, see 15 U.S.C. 45(n), was met partly by the subversion of consumer privacy protections afforded by the Telecommunications Act. But the existence of that injury turns on whether the Telecommunications Act was violated (by somebody), not on whether Accusearch could itself be held liable under the Telecommunications Act. Accusearch also raises the related argument that the FTC had no authority to bring its claim because only the Federal Communications Commission may enforce the Telecommunications Act. This argument fundamentally misapprehends the nature of this lawsuit. The FTC brought suit under the Federal
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Trade Commission Act, seeking to enjoin an unfair practice affecting commerce. See id. 45(a) (declaring unfair practices unlawful); id. at 53(b) (giving the FTC authority to seek enjoinment of unfair practices in federal district court). As set out above, the Telecommunications Act was relevant to that claim. But the complaint does not allege that Accusearch violated that Act. In any event, the FTC may proceed against unfair practices even if those practices violate some other statute that the FTC lacks authority to administer. See Am. Fin. Servs. Assn v. FTC, 767 F.2d 957, 983 (D.C. Cir. 1985) (certain creditor remedies, which violated laws in a number of states, also unfair under 5(a)). Indeed, condemnation of a practice in criminal or civil statutes may well mark that practice as unfair. See FTC v. R.F. Keppel & Bro., 291 U.S. 304, 313 (1934); Am. Fin. Servs. Assn, 767 F.2d at 983. By the same token, a practice, such as Accusearchs, which either encourages such condemned conduct or encourages the use of fraud or theft to circumvent the statute, may likewise be considered unfair. B. Immunity Under the Communications Decency Act
Accusearchs primary argument on appeal is that even if the FTC stated a claim, it is immune from liability under 230(c)(1) of the CDA. See 47 U.S.C. 230(c)(1). The CDA is intended to facilitate the use and development of the Internet by providing certain services an immunity from civil liability arising from content provided by others. See Zeran v. Am. Online, Inc., 129 F.3d 327, 33031
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(4th Cir. 1997). The prototypical service qualifying for this statutory immunity is an online messaging board (or bulletin board) on which Internet subscribers post comments and respond to comments posted by others. See id. at 32829, 332 (discussing operation of messaging board and holding that it was clearly protected by 230s immunity). Indeed, Congress enacted the CDA in response to a state-court decision, Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, *5 (N.Y. Sup. Ct. May 24, 1995), which held that the provider of an online messaging board could be liable for defamatory statements posted by thirdparty users of the board. See Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1163 (9th Cir. 2008) (en banc) (noting Congresss concern about Stratton Oakmont). The Stratton Oakmont court ruled that the administrator of the board became a publisher when it deleted some distasteful third-party postings, and thus was subject to publishers liability for the defamatory postings it failed to remove. 1995 WL 323710, at *45. The decision was criticized for discouraging the voluntary filtration of Internet content, because a forum providers efforts to sanitize content would trigger liability that could be avoided by doing nothing. See Roommates.com, 521 F.3d at 1163. The CDA, however, does more than just overrule Stratton Oakmont. To understand the full reach of the statute, we will need to examine some of the technical terms used in the CDA. But to put those terms in context we first quote the operative provisions of the law. Section 230(c)(1) provides as follows:
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No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. Section 230(c)(2), which protects services that filter content, states: No provider or user of an interactive computer service shall be held liable on account of (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1). [paragraph (1) should probably be subparagraph (A), see U.S.C.A. 230(c), n.1]. Finally, 230(e)(3) provides that No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section. Accusearch claims immunity under 230(c)(1). The language of that provision, quoted above, sets three limits on the immunity provided. First, immunity is available only to a provider or user of an interactive computer service. Id. 230(c)(1). The term interactive computer service means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
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Id. 230(f)(2). Second, the liability must be based on the defendants having acted as a publisher or speaker. Id. at 230(c)(1). Third, immunity can be claimed only with respect to information provided by another information content provider. Id. Accusearch contends that it satisfies these requirements. If it fails to satisfy any one of the three, it is not entitled to immunity. 1. Interactive Computer Service
With respect to the first requirement for CDA immunity, the district court ruled that Accusearch provided an interactive computer service. See Accusearch, 2007 WL 4356786, at *4. The FTC argues on appeal that Accusearch did not provide such a service because its website did not allow for any interaction between third parties. Aplee. Br. at 20. The FTC asserts that the CDAs legislative history and Congresss use of the word interactive evince an intent to protect only the providers of online bulletin boards. It distinguishes such boards from a website like Accusearchs, which merely permits a user to conduct the same sort of business that it would in a retail store (or private investigators office). (We note, however, that the FTCs argument would also deny immunity to nonretail websites, such as one that posted medical-journal articles online (perhaps after removing graphic pictures), unless the website also permitted direct interaction among its visitors.)
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Accusearch essentially concedes the factual premise of the FTCs argument namely, the absence of direct interaction among users of the Abika.com website. Although Accusearch occasionally tries to portray its website as an interactive forum on which independent researchers connected with persons seeking information, it ultimately acknowledges that all information passed between the [customer] and researcher went through Abika.com, as an intermediary. Aplts. Reply Br. at 3. But despite the FTCs accurate characterization of Abika.com, its interactivity argument does not fully respect the CDAs text. Section 230(f)(2) does not say that an interactive computer service must facilitate interaction among third parties; rather, it says that an interactive computer service is one that provides or enables computer access by multiple users to a computer server. 47 U.S.C. 230(f)(2) (emphasis added). See Universal Commcns Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007) (web site operators . . . are providers of interactive computer services because [a] web site . . . enables computer access by multiple users to a computer server, namely, the server that hosts the web site. (internal quotation marks omitted)); Batzel v. Smith, 333 F.3d 1018, 1030 (9th Cir. 2003) (suggesting, but not deciding, that a website necessarily provides an interactive computer service). Accordingly, we are reluctant to embrace the FTCs contention that one who operates a website does not thereby provide an interactive computer service unless it allows interaction
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among the users. Because we can resolve the matter of CDA immunity in this case without deciding whether the FTCs contention is correct, we leave it to another day. 2. Treatment as a Publisher or Speaker
Turning to the second requirement for CDA immunity, we refrain from adopting the concurrences view that the CDA does not protect Accusearch because Accusearchs liability under the FTCA is not based on its being a publisher or speaker. According to the concurrence, the FTC sought and ultimately held Accusearch liable for its conduct rather than for the content of the information it was offering on the Abika.com website. Op., (Tymkovich, J., concurring) at 2. It appears to us, however, that Accusearch would not have violated the FTCA had it not published the confidential telephone information that it had improperly acquired. And that publication was on its website. It would seem to be irrelevant that Accusearch could have operated the same business model without use of the Internet. The concurrence thoughtfully raises an interesting point, but, as with the first requirement for CDA immunity, we choose not to resolve the immunity issue on this ground. 3. Information Content Provider
The predicate for CDA immunity on which we resolve the matter is the third requirement. A provider of an interactive computer service, such as Accusearch, may claim CDA immunity only with respect to information provided by another
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information content provider. 47 U.S.C. 230(c)(1). Thus, an interactive computer service that is also an information content provider of certain content is not immune from liability arising from publication of that content. See Roommates.com, 521 F.3d at 1162; Ben Ezra, Weinstein, & Co., Inc. v. Am. Online Inc., 206 F.3d 980, 985 n.4 (10th Cir. 2000). The CDA defines the term information content provider as any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. 47 U.S.C. 230(f)(3). This is a broad definition, covering even those who are responsible for the development of content only in part. Universal Commcn Sys., 478 F.3d at 419. Accordingly, there may be several information content providers with respect to a single item of information (each being responsible, at least in part, for its creation or development). See 47 U.S.C. 230(f)(3). Accusearch contends that under the plain language of the CDA it was not an information content provider, because it was not responsible for creation or development of information. We disagree. To begin with, we consider whether confidential telephone records are developed, within the meaning of the CDA, when, as here, they are sold to the public over the Internet. The CDA does not define the term development. Accusearch would construe the word narrowly. It relies on two dictionary definitions, correctly
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noting that develop can mean to [m]ake something new and [c]ome into existence. Aplts. Am. Br. at 39 (internal quotation marks omitted). Because the information provided to its customers came originally from the telecommunications carriers, it argues, it made nothing new nor brought anything into existence. But the CDA uses the phrase creation or development of information, 47 U.S.C. 230(f)(3), and if the meaning of the word develop were limited to the two senses relied upon by Accusearch, the word development would add nothing not already conveyed by the word creation. Under a long-standing canon of statutory interpretation, one should avoid construing a statute so as to render statutory language superfluous. McCloy v. U.S. Dept. of Agric., 351 F.3d 447, 451 (10th Cir. 2003); see Roommates.com, 521 F.3d at 1168. We therefore examine whether we can reasonably construe development more broadly. We can. When faced with an undefined statutory term, an investigation of its core meaning can be illuminating. United States v. Montgomery, 468 F.3d 715, 720 (10th Cir. 2006); see also Muscarello v. United States, 524 U.S. 125, 12829 (1998) (investigating etymological origins of carries to uncover its primary meaning). The word develop derives from the Old French desveloper, which means, in essence, to unwrap. Websters Third New International Dictionary 618 (2002) (explaining that desveloper is composed of the word veloper, meaning to wrap up, and the negative prefix des). The dictionary definitions for develop correspondingly revolve around the act of drawing
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something out, making it visible, active, or usable. Id. Thus, a photograph is developed by chemical processes exposing a latent image. See id. Land is developed by harnessing its untapped potential for building or for extracting resources. See id. Likewise, when confidential telephone information was exposed to public view through Abika.com, that information was developed. See id. (one definition of develop is to make actually available or usable (something previously only potentially available or usable)). This conclusion, however, does not end the inquiry. The question remains whether Accusearch was responsible, in whole or in part, for the . . . development of the offending content. Roommates.com, 521 F.3d at 1162 (quoting 230(f)(3)). That is, was it responsible for the development of the specific content that was the source of the alleged liability? The answer is yes. Just as the CDA does not define development, it does not define responsible. We need not provide a complete definition of the term that will apply in all contexts; but we can say enough to resolve this case and to assuage concern that the broad meaning for development that we have adopted will undermine the purpose of immunity under the CDA. The meaning of responsible becomes an issue under the CDA when a court is considering whether CDA immunity from liability is unavailable because one is responsible, in whole or in part, for the creation or development of information that is the source of the liability. In this contextresponsibility for harmthe
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word responsible ordinarily has a normative connotation. See The Oxford English Dictionary 742 (2d ed. 1998) (stating one definition of responsible as Morally accountable for ones actions.). As one authority puts it: [W]hen we say, Every man is responsible for his own actions, we do not think definitely of any authority, law, or tribunal before which he must answer, but rather of the general law of right, the moral constitution of the universe. . . . James C. Fernald, Funk & Wagnalls Standard Handbook of Synonyms, Antonyms, and Prepositions 366 (1947). Synonyms for responsibility in this context are blame, fault, guilt, and culpability. See Oxford American Writers Thesaurus 747 (2d ed. 2008). Accordingly, to be responsible for the development of offensive content, one must be more than a neutral conduit for that content. That is, one is not responsible for the development of offensive content if ones conduct was neutral with respect to the offensiveness of the content (as would be the case with the typical Internet bulletin board). We would not ordinarily say that one who builds a highway is responsible for the use of that highway by a fleeing bank robber, even though the culprits escape was facilitated by the availability of the highway. This construction of the term responsible comports with the clear purpose of the CDAto encourage Internet services that increase the flow of information by protecting them from liability when independent persons negligently or intentionally use those services to supply harmful content. See 47 U.S.C. 230(a),
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(b). We therefore conclude that a service provider is responsible for the development of offensive content only if it in some way specifically encourages development of what is offensive about the content. In the case before us, the offending content was the disclosed confidential information itself. We need not construe the word responsible to extend beyond its core meaning in this context to conclude that Accusearch was responsible for the development of that contentfor the conversion of the legally protected records from confidential material to publicly exposed information. Accusearch solicited requests for such confidential information and then paid researchers to obtain it. It knowingly sought to transform virtually unknown information into a publicly available commodity. And as the district court found and the record shows, Accusearch knew that its researchers were obtaining the information through fraud or other illegality. Accusearch argues that our decision in Ben Ezra, 206 F.3d 980, establishes its entitlement to CDA immunity. In that case the plaintiff corporation sued America Online for allegedly posting on three occasions incorrect information concerning the corporations stock price and share volume. Id. at 983. America Online purchased price and volume information on numerous stocks from a thirdparty vendor who had compiled it from major national and international stock exchanges and stock markets. Id. We held that America Online was protected from liability by the CDA. Id. at 986. Most relevant to this case, we said that
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Plaintiff has not demonstrated [that America Online] worked so closely with [the third-party vendor] regarding the allegedly inaccurate stock information that [it] became an information content provider. Id. at 985. Accusearch argues that because America Online was not considered an information content provider despite soliciting the relevant information for online publication, Accusearchs own solicitation of information could not make it an information content provider either. But Accusearch takes too broad a view of what was the relevant information in Ben Ezra. Although America Online solicited stock quotations, the plaintiffs claim was based on inaccuracies in the solicited quotations. See id. at 983. The offending content was thus erroneous stock quotations and, unsurprisingly, America Online did not solicit the errors; indeed, it sent the vendor emails requesting that it correct the allegedly inaccurate information. Id. at 985. If the information solicited by America Online had been inherently unlawfulfor example, if it were protected by contract or was child pornographyour reasoning would necessarily have been different. In Ben Ezra, however, America Online had done nothing to encourage what made the content offensiveits alleged inaccuracy. America Onlines conduct was neutral with respect to possible errors in the stock quotations. It was therefore not responsible for the offensive content. Our holding that Accusearch was an information content provider is supported by authority from outside this circuit. Most recently, the Ninth Circuit, sitting en banc, held that the provider of an online roommate-matching service was
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responsible for the development of discriminatory preferences contained in its users personal-profile pages. Roommates.com, 521 F.3d at 116768. Subscribers of the website were required to specify from a set of preselected answer choices their sex, sexual orientation and whether [they] would bring children to a household. Id. at 1161; see id. at 1165 & n.17. Subscribers also had to select their preferences in roommates with respect to the same three criteria. Id. at 1161. For example, subscribers seeking housing had to state whether they [were] willing to live with Straight or gay males, only with Straight males, only with Gay males or with No males. Id. at 1165. These preferences were then posted on a subscribers profile page, where they could be reviewed by other subscribers looking for a roommate match. Id. To be sure, the matching service did not place discriminatory preferences in the minds of its users. It did not, in other words, create those preferences. But the court found that by requiring its users to disclose their illicit preferences, the service provider became much more than a passive transmitter of information provided by others; it bec[ame] the developer, at least in part, of that information. Id. at 1166. It summarized: [A] website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct. Id. at 1168. That language applies to Accusearchs role in this case. By paying its researchers to acquire telephone records, knowing that the confidentiality of the records was protected by law, it contributed mightily to the unlawful conduct of its
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researchers. Indeed, Accusearchs responsibility is more pronounced than that of Roommates.com. Roommates.com may have encouraged users to post offending content; but the offensive postings were Accusearchs raison detre and it affirmatively solicited them. An earlier Ninth Circuit case, Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003), provides a useful comparison. In that case an unknown person created a bawdy dating profile for actress Christianne Carafano on the defendants online-dating website. See id. at 1121. To create the profile, the anonymous poster had to draft an essay and select answers to more than fifty questions from menus providing between four and nineteen options. Id. Some options were sexually suggestive and some were innocuous. Id. The Ninth Circuit held that the dating service was not an information content provider of the libelous profile. Id. at 1124. As the en banc court would later explain in Roommates.com, [t]he salient fact in Carafano was that the websites classifications of user characteristics did absolutely nothing to enhance the defamatory sting of the message, to encourage defamation or to make defamation easier. Roommates.com, 521 F.3d at 1172. Although an unknown person created Ms. Carafanos profile in part from preselected answer choices, the menus provided by the website did not encourage a defamatory response. See id. at 1171. Unlike Roommates.com, which prompted the disclosure of discriminatory preferences, the dating website provided only neutral tools which were
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employed to create the offending content. Id. at 1172; see Universal Commcn Sys., 478 F.3d at 420 (messaging board immune with respect to posts it did not prompt); cf. Chi. Lawyers Comm., 519 F.3d at 671 (Craigslist did not cause discriminatory housing advertisements within the meaning of the Fair Housing Act, 42 U.S.C. 3604(c), by hosting online marketplace where they were posted). Accusearch attempts to portray itself as the provider of neutral tools, stressing that it merely provided a forum in which people advertise and request telephone records. Aplts. Am. Br. at 3738. But that phrasing mischaracterizes the record. As explained above, Accusearch solicited requests for confidential information protected by law, paid researchers to find it, knew that the researchers were likely to use improper methods, and charged customers who wished the information to be disclosed. Accusearchs actions were not neutral with respect to generating offensive content; on the contrary, its actions were intended to generate such content. Accusearch is not entitled to immunity under the CDA. C. The Injunction
The FTCA provides that in proper cases the Commission may seek, and after proper proof, the court may issue, a permanent injunction. 15 U.S.C. 53(b). Although Accusearch ceased dealing in telephone records before the FTC filed its complaint, the district court determined that prospective injunctive relief was appropriate to prevent Accusearch from engaging in similar unfair practices with respect to telephone records or the other information it provided.
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Accusearch, 2007 WL 4356786, at *9. Accordingly, the injunction prohibits Accusearch from doing, among other things, the following: (1) Trading in customer phone records unless doing so would be clearly permitted by any law, regulation, or lawful court order, Aplts. App., Vol. 5 at 1607; and Trading in other consumer personal information without the express written permission of [the consumer], unless [the] consumer personal information was lawfully obtained from publically available information, id. at 1608.
(2)
The injunction defines consumer personal information as any individually identifiable information concerning a consumer. Id. at 1606. Accusearch attacks these prohibitions on two grounds, arguing that they are (1) unnecessary and (2) unconstitutionally overbroad. Accusearch does not challenge other aspects of the relief ordered, including the provision requiring it to disgorge $199,692.71 in profits garnered from the sale of telephone records. We address Accusearchs contentions in turn. 1. Propriety of Injunctive Relief
A courts power to grant injunctive relief survives the discontinuance of the illegal conduct. United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953). When, as in this case, a defendant has ceased offending conduct, the party seeking injunctive relief must demonstrate to the court that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive. Id. In assessing the likelihood of recurrence, a
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court may consider all the circumstances, including the bona fides of the expressed intent to comply, the effectiveness of the discontinuance and, in some cases, the character of the past violations. Id. We review the decision to grant a permanent injunction for abuse of discretion. John Allan Co. v. Craig Allen Co. L.L.C., 540 F.3d 1133, 1142 (10th Cir. 2008). The district courts discretion in this context is necessarily broad and a strong showing of abuse must be made to reverse it. W. T. Grant Co., 345 U.S. at 633. Accusearch has not persuaded us that the district court abused its discretion. True, Accusearch ceased offering telephone records before litigation commenced. But, as the district court noted, because Accusearch remained in the information brokerage business it had the capacity to engag[e] in similar unfair acts or practices in the future. Accusearch, 2007 WL 4356786, at *9; see also W.T. Grant Co., 345 U.S. at 633 (effectiveness of the discontinuance is a factor in assessing likelihood of recurrence). In Accusearchs view it has proved the absence of any need for prospective relief by expressing a willingness to disgorge nearly $200,000 in ill-gotten profits. But a district court is best situated to judge the sincerity of a litigants contrition, see W.T. Grant Co., 345 U.S. at 634, and Accusearch has given us no ground to second-guess the district courts judgment. See United States v. Or. State Med. Soc., 343 U.S. 326, 333 (1952) (courts must beware of efforts to defeat injunctive relief by protestations of repentance and reform).
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Accusearch also argues that the injunction was improper because 18 U.S.C. 1039, enacted by Congress after this suit was filed, criminalizes the sale and receipt of confidential telephone records absent customer consent. Id. 1039(a)(c) (Supp. 2008). Stressing that the government could prosecute under 1039 if it resumed its trade in telephone records, Accusearch asserts that prospective injunctive relief would be redundant, and, as such, improper, because a proper injunction must enhance the already existing power of the Government to act. Aplts. Am. Br. at 49 (quoting New York Times Co. v. United States, 403 U.S. 713, 744 (1971) (Marshall, J., concurring)). To be sure, injunctions against criminalized conduct have historically been disfavored. See Natl Assn of Letter Carriers v. Indep. Postal Sys. of Am., Inc., 470 F.2d 265, 271 (10th Cir. 1972). But in keeping with the characteristic flexibility of equitable remedies, they have never been absolutely prohibited. See id. An injunction can have several advantages over the threat posed by a criminal statute. To begin with, it can encompass conduct not barred by the statute. Here, the injunction covers all individually identifiable consumer information, Aplts. App., Vol. 5 at 1606, whereas the criminal statute covers only telephone records, see 18 U.S.C. 1039(a)(c), (h)(1). Also, because an injunction can be drawn more precisely than a criminal statute, it can have a greater deterrent effect by removing any doubt in the mind of the enjoined party that particular conduct is forbidden. Furthermore, proving a violation of an injunction is generally less
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burdensome than proving a criminal violation. For example, to violate 1039 one must act knowingly and intentionally. Id. 1039(a)(c). The injunction, on the other hand, imposes no scienter requirement and the law does not necessarily imply one. See FTC v. Freecom Commcns, Inc., 401 F.3d 1192, 1204 n.7 (10th Cir. 2005) (FTC need not prove scienter . . . to establish a 5 violation.); 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure 2960, at 382 (2d ed. 1995) ([A] violation of [a] decree need not be willful for a party to be held in civil contempt.). And a violation need not be proved to a jury beyond a reasonable doubt. See Charles Alan Wright, supra 2960, at 37980 (there is no constitutional right to a jury in civil-contempt proceedings and the contempt must be shown only by clear and convincing evidence, not beyond a reasonable doubt). The district court did not impose an inconsequential injunction. Thus, Accusearchs argument fails on its own terms. In any event, Congress . . . has power to provide for civil injunctive relief against activities which adversely affect interstate commerce, and that power extends to activities which are made criminal by state or federal law. United States v. Cappetto, 502 F.2d 1351, 1356 (7th Cir. 1974) (upholding injunction against gambling activities issued under the Organized Crime Control Act of 1970, which also made those activities a crime); accord Natl Assn of Letter Carriers, 470 F.2d at 271 (injunction against criminalized conduct proper in part because it was authorized by statutes purely civil in nature). In enacting the FTCA,
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Congress gave the FTC express authority to seek permanent injunctive relief in federal court to prevent violations of 5(a). See 15 U.S.C. 53(b); FTC v. Kuykendall, 371 F.3d 745, 749, 764 (10th Cir. 2004) (en banc). In sum, the enactment of 1039 does not undermine the propriety of the injunction against Accusearch. 2. Breadth of the Injunction
Although the district court determined only that Accusearchs trade in telephone records was unfair within the meaning of the FTCA, it issued an injunction restricting Accusearchs trade in any individually identifiable information concerning a consumer. Aplts. App., Vol. 5 at 1606. Accusearch argues that the injunction should have been limited to its trade in telephone records, the specific practice found to be unlawful. See FTC v. Colgate-Palmolive Co., 380 U.S. 374, 39495 (1965) (FTC may fence in offenders by enjoining more than the specific misconduct previously engaged in, but the injunction must bear a reasonable relation to the unlawful practices found to exist.). According to Accusearch, this overbreadth violates its due-process, free-speech, and equalprotection rights. (Because Accusearchs discussion of equal protection does not reference any particular feature of the injunction, we presume that the claim is tied to the only feature that Accusearch challenges on appealnamely, its coverage of information other than telephone records.)
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Accusearch, however, not only failed to preserve this claim of error below, it invited the alleged error. After the district court granted the FTC summary judgment, the parties submitted briefs on the propriety and scope of injunctive relief. Accusearch argued that an injunction was unnecessary and that, if the court disagreed, injunctive relief should be limited in certain respects. In connection with this alternate argument, Accusearch submitted a proposed injunctive order that had been negotiated with the FTC. Aplts. App., Vol. 5 at 1409. The proposed injunction set forth agreed-upon language and denoted several areas in which the parties could not reach consensus. Among the agreed-upon provisions were Section II, entitled Prohibited Business Activities, which bars dealings in consumer personal information, and the definition of that term as any individually identifiable information concerning a consumer. FTC v. Accusearch, Inc., No. 06-CV-105-D (Defs. Br. on Injunctive Relief, Ex. A at 25, Nov. 19, 2007). Curiously, Accusearch submitted the proposed injunction as an attachment to a district-court brief in which it argued that the injunctive relief sought by the FTC would be overbroad because it was not limited to telephone records but covered all consumer information. Aplts. App., Vol. 5 at 1411. That is, Accusearch appeared to object to provisions to which it had stipulated, perhaps indicating a clerical error or a drafting oversight. The FTCs responding brief took note of this inconsistency and reminded Accusearch that it had specifically
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agreed to those provisions extending the injunctions coverage beyond telephone records. In reply, Accusearch made no effort to clarify its position or retract any stipulation in the proposed order. With no reason to doubt the stipulated language, the district court understandably adopted it verbatim. The invited-error doctrine precludes a party from arguing that the district court erred in adopting a proposition that the party had urged the district court to adopt. United States v. Deberry, 430 F.3d 1294, 1302 (10th Cir. 2005). Thus, a party whose proposed order is entered as a judgment may not challenge errors within it on appeal. See Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc., 532 F.3d 1063, 1072 (10th Cir. 2008). The doctrine applies in this case to bar Accusearch from challenging language that it proposed jointly with the FTC. See Lyles v. Am. Hoist & Derrick Co., 614 F.2d 691, 694 (10th Cir. 1980) (rulings of a trial court in accordance with stipulations that are clear and unambiguous will not be considered erroneous on appeal). Accordingly, Accusearchs due-process, free-speech, and equal-protection arguments, which are premised on the breadth of the injunction, are waived and fail. III. CONCLUSION We AFFIRM the judgment of the district court.
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08-8003, F.T.C. v. Accusearch Inc. DBA Abika.com & Jay Patel Tymkovich, J., concurring. I write separately to emphasize what I see as an unnecessary extension of the CDAs terms responsible and development, thereby widening the scope of what constitutes an information content provider with respect to particular information under the Act. See 47 U.S.C. 230(c)(1), (f)(3). The majority holds that by soliciting third-parties to obtain and then exposing the confidential telephone records to public view, Accusearch is responsibleat least in partfor developing that information. Under this definition, the line between passive posting of tortious or unlawful commentary, news articles, or other previously unpublished information and content development depends on an amorphous analysis of the motivations of the content provider in soliciting or acquiring that information. In the majoritys view, a content provider seeking out the information in good faith may be able to obtain CDA immunity for any subsequent liability, as it would not have been responsible, in whole or in part, for the . . . development of [that] information. 230(f)(3). If the providers motivations are not in good faith, however, the majoritys approach transforms the provider into a developer of that information. The provider would then be deemed the information content provider for that information and lose its entitlement to CDA immunity. Instead of embarking on this path, I would avoid the need to interpret the CDA in the first instance.
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I agree with the majority that Accusearch violated the FTCA, though I reach this conclusion because I believe the FTC sought and ultimately held Accusearch liable for its conduct rather than for the content of the information it was offering on the Abika.com website. Section 230 only immunizes publishers or speakers for the content of the information from other providers that they make public. 230(c)(1) (No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.). The CDA says nothing about immunizing publishers or speakers for their own conduct in acquiring the information. Indeed, other courts have explicitly recognized this distinction. E.g., 800-JR Cigar, Inc. v. GoTo.com, Inc., 437 F. Supp. 2d 273, 295 (D.N.J. 2006) ([I]mmunity under the Act applies to any cause of action that would make service providers liable for information originating with a third-party user of the service. Immunity does not seem to fit here because the alleged fraud is the use of the trademark name in the bidding process, and not solely the information from third parties that appears on the search results page. It is not the purpose of the Act to shield entities from claims of fraud and abuse arising from their own pay-for-priority advertising business, rather than from the actions of third parties.); Mazur v. eBay Inc., No. C 0703967 MHP, 2008 WL 618988, at *9, 12 (N.D. Cal. Mar. 4, 2008) (The CDA does not immunize [a content provider] for its own fraudulent misconduct. . . . [Here,] eBays statement regarding safety affects and creates an expectation -2-
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regarding the procedures and manner in which the auction is conducted and consequently goes beyond traditional editorial discretion.). A recent Ninth Circuit case succinctly summed up the scope of Section 230 immunity with respect to various torts, stating: [W]hat matters is whether the cause of action inherently requires the court to treat the defendant as the publisher or speaker of content provided by another. To put it another way, courts must ask whether the duty that the plaintiff alleges the defendant violated derives from the defendants status or conduct as a publisher or speaker. If it does, section 230(c)(1) precludes liability. Barnes v. Yahoo!, Inc., 565 F.3d 560, 566 (9th Cir. 2009). To make clear how the FTC sought to hold Accusearch liable, a quick review of Accusearchs conduct is helpful. Through its Abika.com website, Accusearch offered paying consumers the opportunity to obtain private confidential telephone records of almost any individual with a cellular or landline telephone. To fulfill a consumers request for such information, Accusearch would solicit and ultimately enlist various third-party researchers to dig up these confidential records. These third-party researchers would use various fraudulent or unlawful means to obtain these records from telecommunications carriers in violation of the Telecommunications Act, 222. The researchers would then sell the records to Accusearch. In its complaint, the FTC expressly addressed the conduct for which it sought to hold Accusearch liable. In particular, using Section 5(a) of the FTC Act,
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15 U.S.C. 45(a), the FTC contended Accusearch surreptitiously obtain[ed] and s[old] confidential customer phone records without the customers knowledge or authorization. Aplt. App., Vol. I at 19 1. In reference to Accusearchs business model, the FTC noted that [f]or a fee, Defendants have offered to obtain Details of incoming or outgoing calls from any phone number, prepaid calling card or Internet Phone. Phone searches are available for every country of the world. Id. at 21 9. Further, and most importantly, the FTC alleged (and ultimately proved): The account holders have not authorized the Defendants to obtain access to or sell their confidential customer phone records. Instead, to obtain such information, Defendants have used, or caused others to use, false pretenses, fraudulent statements, fraudulent or stolen documents or other misrepresentations, including posing as a customer of a telecommunications carrier, to induce officers, employees, or agents of telecommunications carriers to disclose confidential customer phone records. Defendants have sold the confidential customer phone records that they have obtained to their clients. Id. at 2122 10 (emphasis added). 4 As its cause of action against Accusearch, the FTC claimed Accusearch violated the FTCA by directly or through their employees or agents, . . . obtain[ing] and s[elling] to third parties confidential
To satisfy the injury prong for FTCA liability, the FTC claimed the invasion of privacy and security resulting from obtaining and selling confidential customer phone records without the consumers authorization causes substantial harm to consumers and the public, including, but not limited to, endangering the health and safety of consumers. Id. at 22 11. -4-
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customer proprietary network information without the knowledge or consent of the customer. Id. at 22 12. As is clear from the complaint, the FTCs allegations of FTCA violations stemmed not from the content of the information Accusearch was disclosing (or developing), but from Accusearchs own conduct in (1) offering the information for sale, (2) soliciting and encouraging third-parties to violate the law in obtaining the information, and (3) ultimately paying these third parties and selling the information to consumers. Accusearchs duty to refrain from engaging in these unfair business practices does not derive from its status or conduct as an Internet website that publishes content. 5 Rather, the duty the FTC alleged Accusearch violated derives from the expectations that a business would not engage in unlawful or unfair business practices in general (whether the business is a conventional bricks-and-mortar operation or exists entirely on the World Wide Web). See Barnes, 565 F.3d at 566. While Internet publication of the confidential phone data, by itself, may very well be protected by the CDA, the CDA does not immunize, expressly or implicitly, the manner in which Accusearch conducted its
If Accusearch had run a traditional business out of a physical location and offered similar services, it would seem the FTC would have the same unfair business practices complaint. Nothing would immunize Accusearchs conduct had it chosen to deliver the confidential telephone records to requesters through hard copy print-outs either in person or through the mail. Accusearchs duty to refrain from engaging in the solicitation and distribution of unlawfully-obtained confidential telephone records should not depend on the medium within which it chooses to operate. -5-
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business. In sum, the CDA does not extend to immunize a partys conduct outside the realm of the Internet just because it relates to the publishing of information on the Internet. Rather than follow the majoritys disposition of this issueextending the definitions of responsible and develop to include solicitation of information based on consumer selections off of Accusearchs websiteI would limit the analysis to whether the CDA even applies in the first place. I would conclude that it does not, and that Accusearch therefore was liable for its unfair business practices in violation of the FTCA.
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Philip J. Berg, Esquire (PA I.D. 9867) E-mail: philjberg@gmail.com LAW OFFICES OF PHILIP J. BERG 555 Andorra Glen Court, Suite 12 Lafayette Hill, PA 19444-2531 Telephone: (610) 825-3134 Fax: (610) 834-7659 Attorney in pro se and for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION LISA LIBERI, et al, vs. ORLY TAITZ, et al, : : : Plaintiffs, : : : : : : Defendants. : :
I, Philip J. Berg, Esquire, hereby certify a true and correct copy of Plaintiffs
Concise Statement of Genuine Disputes of Intelius Proposed Uncontroverted Material Facts were served electronically through the ECF filing system this 20th day of
John A Vogt, Jr., Esquire Edward San Chang, Esquire Jones Day 3161 Michelson Drive Suite 800 Irvine, CA 92612 Email: javogt@jonesday.com Email: echang@jonesday.com Attorney for Defendant Intelius, Inc.
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Marc Steven Colen, Esquire Law Offices of Marc Steven Colen 5737 Kanan Road, Suite 347 Agoura Hills, CA 91301 Email: mcolen@colenlaw.com Attorney for Defendants: Neil Sankey; Todd Sankey; Sankey Investigations, Inc. and The Sankey Firm, Inc. James F McCabe, Esquire Morrison & Foerster 425 Market Street San Francisco, CA 94105-2482 Email: jmccabe@mofo.com Attorney for Defendants: Reed Elsevier, Inc., LexisNexis Group, Inc., LexisNexis, Inc., LexisNexis Risk and Information Analytics Group, Inc., LexisNexis Risk Solutions, Inc., Seisint, Inc. d/b/a Accurint, Choicepoint, Inc.