Case: 5:18-cv-00064 Doc #: 1 Filed: 01/10/18 1 of 7. PageID #: 1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO


Case Number: 5:18-cv-64
UNITED STATES OF AMERICA,
Plaintiff,
v.
INFOCISION, INC., a Delaware
corporation,
Defendant.

COMPLAINT FOR CIVIL PENALTIES,

PERMANENT INJUNCTION, AND OTHER RELIEF

Plaintiff, the United States of America, acting upon notification and authorization to the
Attorney General by the Federal Trade Commission (“FTC” or “Commission”), pursuant to
Section 16(a)(1) of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. § 56(a)(1), for its
complaint alleges:
1.

Plaintiff brings this action under Sections 5(a), 5(m)(1)(A), 13(b), and 16(a) of the

FTC Act, 15 U.S.C. §§ 45(a), 45(m)(1)(A), 53(b), and 56(a), and Section 6 of the Telemarketing
and Consumer Fraud and Abuse Prevention Act (“Telemarketing Act”), 15 U.S.C. § 6105, to
obtain monetary civil penalties, a permanent injunction, and other relief for Defendant’s

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violations of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and the FTC’s Telemarketing Sales
Rule (“TSR” or “Rule”), as amended, 16 C.F.R Part 310.
JURISDICTION AND VENUE
2.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

§§ 1331, 1337(a), 1345, and 1355, and 15 U.S.C. §§ 45(m)(1)(A), 53(b), and 56(a). This action
arises under 15 U.S.C. § 45(a).
3.

Venue is proper in this District under 28 U.S.C. §§ 1391(b)-(c) and 1395(a), and

15 U.S.C. § 53(b). Defendant resides and transacts business in this District.
DEFENDANT
4.

Defendant, InfoCision, Inc. (“InfoCision”), is a for-profit Delaware corporation

with its principal place of business at 325 Springside Drive, Akron, OH, 44333. InfoCision is a
telemarketer that initiates outbound telephone calls on behalf of charitable organizations to
induce consumers to make charitable contributions. InfoCision transacts or has transacted
business in this District and throughout the United States.
5.

At all times relevant to this Complaint, InfoCision has maintained a substantial

course of trade or business in soliciting charitable contributions via the telephone, in or affecting
commerce, as “commerce” is defined in Section 4 of the FTC Act, 15 U.S.C. § 44.
THE TELEMARKETING SALES RULE
6.

Congress directed the Commission to prescribe rules prohibiting abusive and

deceptive telemarketing acts or practices pursuant to the Telemarketing Act, 15 U.S.C. §§ 61016108. The Commission adopted the original TSR in 1995, extensively amended it in 2003, and
amended certain provisions thereafter. 16 C.F.R. Part 310.

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7.

Section 1011 of the USA Patriot Act, codified in relevant part at 15 U.S.C.

§§ 6102 and 6106, amended the Telemarketing Act to cover “charitable solicitations.” It
directed the FTC to expand the scope of the TSR to cover calls made to solicit charitable
contributions. In 2002, the FTC amended the TSR to modify the definition of telemarketing to
(1) include interstate calls made by for-profit telemarketers to solicit charitable contributions, (2)
require for-profit telemarketers calling to solicit such contributions to promptly disclose the
name of the organization making the request and that the purpose of the call is to ask for a
charitable contribution, and (3) prohibit for-profit telemarketers from making a false or
misleading statement to induce any person to make a charitable contribution. These
requirements ensure that for-profit telemarketers that solicit charitable contributions are truthful
about the purpose of the call and that consumers receive material information so that they can
make informed choices about whether to engage with the telemarketers and give a charitable
contribution.
8.

Under the TSR, a “telemarketer” means “any person who, in connection with

telemarketing, initiates or receives telephone calls to or from a customer or donor.” 16 C.F.R. §
310.2(ff). A “donor” means “any person solicited to make a charitable contribution,” 16 C.F.R.
§ 310.2(p), and a “charitable contribution” means “any donation or gift of money or any other
thing of value.” 16 C.F.R. § 310.2(h).
9.

Under the TSR, an “outbound” telephone call means “a telephone call initiated by

a telemarketer to induce the purchase of goods or services or to solicit a charitable contribution.”
16 C.F.R. § 310.2(x).

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10.

The TSR prohibits telemarketers from “[m]aking . . . false or misleading

statement[s] to induce any person to pay for goods or services or to induce a charitable
contribution.” 16 C.F.R § 310.3(a)(4).
11.

Pursuant to Section 3(c) of the Telemarketing Act, 15 U.S.C. § 6102(c), and

Section 18(d)(3) of the FTC Act, 15 U.S.C. § 57a(d)(3), a violation of the TSR constitutes an
unfair or deceptive act or practice in or affecting commerce, in violation of Section 5(a) of the
FTC Act, 15 U.S.C. § 45(a).
DEFENDANT’S BUSINESS PRACTICES
12.

InfoCision is a “telemarketer” engaged in “telemarketing” as those terms are

defined in the TSR.
13.

InfoCision initiates outbound telephone calls to consumers in the United States to

induce consumers to make charitable contributions to hundreds of various charitable
organizations.
14.

InfoCision has engaged in telemarketing by a plan, program, or campaign

conducted to induce consumers to make charitable contributions to these charitable organizations
by the use of one or more telephones and which involves more than one interstate telephone call.
15.

Since at least 2013, InfoCision has conducted hundreds of telemarketing

campaigns on behalf of these charitable organizations, involving millions of telephone calls to
consumers.
16.

In some of these telemarketing campaigns, InfoCision’s telemarketers called

consumers and told them at the beginning of the call that the purpose of the call was not to ask
for a donation. In such calls, InfoCision’s telemarketers subsequently asked consumers to mail

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or hand-deliver to family, friends, or neighbors materials asking for monetary donations on
behalf the charitable organization. In numerous instances in those same calls, contrary to
InfoCision’s initial representations and claims, InfoCision’s telemarketers also asked consumers
to make a monetary donation, often in amounts of $10, $25, or $50.
VIOLATIONS OF THE TELEMARKETING SALES RULE

Count I

False or Misleading Statements to Induce a Charitable Contribution

17.

As described in Paragraphs 12 through 16 above, in numerous instances in

connection with telemarketing, Defendant has made, or caused others to make, false and
misleading statements in outbound telephone calls to consumers to induce a charitable
contribution in violation of the TSR. 16 C.F.R § 310.3(a)(4).
CONSUMER INJURY
18.

Consumers in the United States have suffered and will suffer injury as a result of

Defendant’s violations of the TSR. Absent injunctive relief by this Court, Defendant is likely to
continue to injure consumers and harm the public interest.
THIS COURT’S POWER TO GRANT RELIEF
19.

Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), empowers this Court to grant

injunctive and other ancillary relief to prevent and remedy any violation of any provision of law
enforced by the FTC.
20.

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

Section 4 of the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, as
amended, and as implemented by 16 C.F.R. § 1.98(d), authorizes this Court to award monetary

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civil penalties. In 2013, the Court was authorized to award a penalty of not more than $16,000
for each violation of the TSR. See 16 C.F.R. § 1.98(d) (2009). The maximum penalty amount
was adjusted to $40,000 per violation as of August 1, 2016, and further adjusted to $40,654 per
violation as of January 24, 2017, pursuant to the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015, Pub. L. 114-74 § 701 (further amending the Federal Civil Penalties
Inflation Adjustment Act of 1990), and 16 C.F.R. § 1.98, 81 Fed. Reg. 42,476 (June 30, 2016);
82 Fed. Reg. 8135 (January 24, 2017).
21.

Defendant’s violations of the TSR were committed with the knowledge required

by Section 5(m)(1)(A) of the FTC Act, 15 U.S.C. § 45(m)(1)(A).
22.

This Court, in the exercise of its equitable jurisdiction, may award ancillary relief

to remedy injury caused by Defendant’s violations of the TSR and the FTC Act.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff requests that this Court, as authorized by Sections 5(a),
5(m)(1)(A), and 13(b) of the FTC Act, 15 U.S.C. §§ 45(a), 45(m)(1)(A), and 53(b), and pursuant
to its own equitable powers:
A.

Enter judgment against Defendant and in favor of Plaintiff for each violation

alleged in this complaint;
B.

Award Plaintiff monetary civil penalties from the Defendant for every violation of

the TSR;
C.

Enter a permanent injunction to prevent future violations of the TSR and the FTC

Act by Defendant; and

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D.

Award Plaintiff the costs of bringing this action, as well as such other and

additional relief as the Court may determine to be just and proper.
Respectfully submitted,
FOR THE FEDERAL TRADE
COMMISSION:
CHARLES A. HARWOOD
Regional Director
Northwest Region
TINA E. KONDO
Assistant Regional Director
Northwest Region
NADINE S. SAMTER
SARAH A. SHIFLEY
Attorneys
Northwest Region
Federal Trade Commission
915 Second Avenue, Suite 2896
Seattle, WA 98174
(206) 220-6350 (voice)
(206) 220-6366 (fax)
nsamter@ftc.gov
sshifley@ftc.gov

FOR PLAINTIFF
THE UNITED STATES OF AMERICA:
CHAD A. READLER
Acting Assistant Attorney General
Civil Division
U.S. Department of Justice
ETHAN DAVIS
Deputy Assistant Attorney General
Civil Division
GUSTAV W. EYLER
Acting Director
Consumer Protection Branch
By: s/ Kathryn A. Schmidt_________
KATHRYN A. SCHMIDT
Trial Attorney
Consumer Protection Branch
450 Fifth Street NW, 6th Floor South
Washington, DC 20001
(202) 598-8697 (voice)
(202) 514-8742 (fax)
kathryn.a.schmidt@usdoj.gov
JUSTIN E. HERDMAN
United States Attorney
MICHELLE L. HEYER (0065723)
Assistant U.S. Attorney
801 West Superior Avenue, Suite 400
Cleveland OH 44113
(216) 622-3686 (voice)
(216) 522-2404 (fax)
michelle.heyer@usdoj.gov

Dated: January 10, 2018

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CIVIL COVER SHEET

JS 44 (Rev. 06/17) 

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a)  PLAINTIFFS

DEFENDANTS

InfoCision, Inc., a Delaware corporation

United States of America

(b) County of Residence of First Listed Plaintiff

County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES)
NOTE: 

(c) Attorneys (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

Kathryn A. Schmidt, Consumer Protection Branch, U.S. Department of
Justice, P.O. Box 386, Washington DC 20044

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

Terry Brennan and Michael Meuti, Baker Hostetler

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only)

u 1

u 2

U.S. Government
Plaintiff

u 3

U.S. Government
Defendant

u 4

Federal Question
(U.S. Government Not a Party)

Diversity
(Indicate Citizenship of Parties in Item III)

u
u
u
u
u

Citizen of This State

DEF
u 1

Citizen of Another State

u 2

u

2

Incorporated and Principal Place
of Business In Another State

u 5

u 5

Citizen or Subject of a
Foreign Country

u 3

u

3

Foreign Nation

u 6

u 6

u
u
u
u
u
u
u

u
u
u
u
u
u
u
u
u
u

u
u
u
u
u
u

Click here for: Nature of Suit Code Descriptions.

TORTS

110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veteran’s Benefits
160 Stockholders’ Suits
190 Other Contract
195 Contract Product Liability
196 Franchise

REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

u
u
u
u
u
u
u

PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers’
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education

and One Box for Defendant)
PTF
DEF
Incorporated or Principal Place
u 4
u 4
of Business In This State

PTF
u 1

IV. NATURE OF SUIT (Place an “X” in One Box Only) 
CONTRACT

Summit County

(IN U.S. PLAINTIFF CASES ONLY)
IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

FORFEITURE/PENALTY

PERSONAL INJURY
u 365 Personal Injury Product Liability
u 367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
u 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
u 370 Other Fraud
u 371 Truth in Lending
u 380 Other Personal
Property Damage
u 385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
u 463 Alien Detainee
u 510 Motions to Vacate
Sentence
u 530 General
u 535 Death Penalty
Other:
u 540 Mandamus & Other
u 550 Civil Rights
u 555 Prison Condition
u 560 Civil Detainee Conditions of
Confinement

u 625 Drug Related Seizure
of Property 21 USC 881
u 690 Other

LABOR
u 710 Fair Labor Standards
Act
u 720 Labor/Management
Relations
u 740 Railway Labor Act
u 751 Family and Medical
Leave Act
u 790 Other Labor Litigation
u 791 Employee Retirement
Income Security Act

BANKRUPTCY
u 422 Appeal 28 USC 158
u 423 Withdrawal
28 USC 157
PROPERTY RIGHTS
u 820 Copyrights
u 830 Patent
u 835 Patent - Abbreviated
New Drug Application
u 840 Trademark
SOCIAL SECURITY
u 861 HIA (1395ff)
u 862 Black Lung (923)
u 863 DIWC/DIWW (405(g))
u 864 SSID Title XVI
u 865 RSI (405(g))

FEDERAL TAX SUITS
u 870 Taxes (U.S. Plaintiff
or Defendant)
u 871 IRS—Third Party
26 USC 7609

IMMIGRATION
u 462 Naturalization Application
u 465 Other Immigration
Actions

OTHER STATUTES
u 375 False Claims Act
u 376 Qui Tam (31 USC
3729(a))
u 400 State Reapportionment
u 410 Antitrust
u 430 Banks and Banking
u 450 Commerce
u 460 Deportation
u 470 Racketeer Influenced and
Corrupt Organizations
u 480 Consumer Credit
u 490 Cable/Sat TV
u 850 Securities/Commodities/
Exchange
u 890 Other Statutory Actions
u 891 Agricultural Acts
u 893 Environmental Matters
u 895 Freedom of Information
Act
u 896 Arbitration
u 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
u 950 Constitutionality of
State Statutes

V. ORIGIN (Place an “X” in One Box Only)
u 1 Original
Proceeding

u 2 Removed from
State Court

u 3

u 6 Multidistrict
Litigation Transfer
(specify)
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
Remanded from
Appellate Court

u 4 Reinstated or
Reopened

u 5 Transferred from
Another District

u 8 Multidistrict
Litigation Direct File

15 U.S.C. 45

VI. CAUSE OF ACTION Brief description of cause:
Violation of the Federal Trade Commission's Telemarketing Sales Rule and the Federal Trade Commission Act

u CHECK IF THIS IS A CLASS ACTION
VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE 
DATE 

CHECK YES only if demanded in complaint:
u Yes
u No
JURY DEMAND:

DEMAND $

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

/s/ Kathryn A. Schmidt

01/10/2018 
FOR OFFICE USE ONLY
RECEIPT #

AMOUNT 

APPLYING IFP

JUDGE

MAG. JUDGE

 Case: 5:18-cv-00064 Doc #: 1-1 Filed: 01/10/18 2 of 2. PageID #: 9

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

I.

Civil Categories: (Please check one category only).

1. ✔
2.
3.

General Civil
Administrative Review/Social Security
Habeas Corpus Death Penalty

*If under Title 28, §2255, name the SENTENCING JUDGE:
CASE NUMBER:

II.

RELATED OR REFILED CASES. See LR 3.1 which provides in pertinent part: "If an action is filed or removed to this Court
and assigned to a District Judge after which it is discontinued, dismissed or remanded to a State court, and
subsequently refiled, it shall be assigned to the same Judge who received the initial case assignment without regardfor
the place of holding court in which the case was refiled. Counsel or a party without counsel shall be responsible for
bringing such cases to the attention of the Court by responding to the questions included on the Civil Cover Sheet."
This action 

LV RELATED to another  PENDING civil case

LV D REFILED FDVH

ZDV 35(9,286/< 5(0$1'('

If applicable, please indicate on page 1 in section VIII, the name of the Judge and case number.

III.

In accordance with Local Civil Rule 3.8, actions involving counties in the Eastern Division shall be filed at any of the
divisional offices therein. Actions involving counties in the Western Division shall be filed at the Toledo office. For the
purpose of determining the proper division, and for statistical reasons, the following information is requested.
ANSWER ONE PARAGRAPH ONLY. ANSWER PARAGRAPHS 1 THRU 3 IN ORDER. UPON FINDING WHICH
PARAGRAPH APPLIES TO YOUR CASE, ANSWER IT AND STOP.
(1)
Resident defendant. If the defendant resides in a county within this district, please set forth the name of such
county
COUNTY:
 Summit County
Corporation For the purpose of answering the above, a corporation is deemed to be a resident of that county in which

it has its principal place of business in that district.

(2) 

Non-Resident defendant. If no defendant is a resident of a county in this district, please set forth the county
wherein the cause of action arose or the event complained of occurred.
COUNTY:
(3) 

Other Cases. If no defendant is a resident of this district, or if the defendant is a corporation not having a principle
place of business within the district, and the cause of action arose or the event complained of occurred outside
this district, please set forth the county of the plaintiff's residence.
COUNTY:

IV.

The Counties in the Northern District of Ohio are divided into divisions as shown below. After the county is
determined in Section III, please check the appropriate division.
EASTERN DIVISION

✔

AKRON
CLEVELAND
YOUNGSTOWN

(Counties: Carroll, Holmes, Portage, Stark, Summit, Tuscarawas and Wayne)
(Counties: Ashland, Ashtabula, Crawford, Cuyahoga, Geauga, Lake,
Lorain, Medina and Richland)
(Counties: Columbiana, Mahoning and Trumbull)

WESTERN DIVISION
TOLEDO

(Counties: Allen, Auglaize, Defiance, Erie, Fulton, Hancock, Hardin, Henry,
Huron, Lucas, Marion, Mercer, Ottawa, Paulding, Putnam, Sandusky, Seneca
VanWert, Williams, Wood and Wyandot)