Opinion

Federal Trade Commission v. Seek Capital, LLC

Court
District Court, C.D. California
Filed
Sep 30, 2025
Cited by
0 cases
Authority
More cited than 35.5%

“A conclusory, self-serving affidavit. lacking detailed facts and any supporting evidence. is insufficient to create a genuine issue of material fact.”

How later courts described this case

  • “A conclusory, self-serving affidavit. lacking detailed facts and any supporting evidence. is insufficient to create a genuine issue of material fact.”
  • disclaimer in contract that “consumers eventually sign” is insufficient where it “is not included in the representations”
  • noting that “harm need not be monetary to qualify as injury” and finding that time consumers spent contesting unauthorized checks and “attempting to get their money back” contributed to substantial injury
  • “Because the FTC seeks a permanent injunction in this case, good faith is to that extent a valid affirmative defense.”

Written by the judges who cited it.

The opinion

|_| MAYA SEQUEIRA (pro hac vice) JS6

msequeira@ftc.gov

2 || (202) 326-3719

3 | KATHERINE WORTHMAN (pro hac vice)

kworthman@ftc.gov

4 | (202) 326-2929

JULIA HEALD, (pro hac vice)

jheald@ftc.gov

6 || (202) 326-3589

7 | SALLY TIEU, Cal. Bar No. 346034

stieu@ftc.gov

8 || (202) 304-7313

g || FEDERAL TRADE COMMISSION

600 Pennsylvania Avenue, N.W.

10 | Mail stop CC-10232

1] || Washington, D.C. 20580

12 | AARON SCHUE, Cal. Bar No. 338760

13 || Local Counsel

aschue@ftc.gov

14 (310) 824-4306

15 | FEDERAL TRADE COMMISSION

10990 Wilshire Boulevard, Suite 400

16 || Los Angeles, CA 90024

17 || Attorneys for Plaintiff

18 UNITED STATES DISTRICT COURT

19 CENTRAL DISTRICT OF CALIFORNIA

20 2:24-cv-09511-RGK-MAA

1 FEDERAL TRADE COMMISSION, | CASE NO. 2tv-69SttERGE

Plaintiff,

73 y STIPULATED {PROPOSES}

ORDER FOR PERMANENT

24 INJUNCTION, MONETARY

SEEK CAPITAL, LLC, et al., JUDGMENT, AND OTHER

Defendants. RELIEF

26

57 [142]

1 Plaintiff, the Federal Trade Commission (“Commission” or “FTC”), filed its

2 || Complaint for Permanent Injunction, Monetary Judgment, and Other Relief in this

3 || matter, pursuant to Sections 13(b) and 19 of the Federal Trade Commission Act

4 | CFTC Act’), ISUS.C. §§ 53(b) & S57b. The Commission and Defendants

5 || stipulate to the entry of this Order for Permanent Injunction, Monetary Judgment,

6 | and Other Relief (“Order”) to resolve all matters in dispute in this action between

7 | them.

8 || THEREFORE, IT IS ORDERED as follows:

9 FINDINGS

10 1. This Court has jurisdiction over the subject matter of this case.

11 2. The Complaint charges that Defendants have participated in unfair and

12 || deceptive acts or practices in violation of Section 5 of the FTC Act, 15 U.S.C. §

13 | 45(a), the FTC’s Telemarketing Sales Rule (“TSR”), 16 C_F.R. Part 310, and

14 | conduct that violates the Consumer Review Fairness Act of 2016 (“CRFA”), 15

15 |] UWS.C_§ 45b(b)(1).

16 | 3. Defendants violated Section 5 of the FTC Act, 15 U.S.C. § 45(a) and (n), the

17 || TSR, 16 C.F.R. Part 310, and the CRFA, 15 U_S.C. § 45b(b)(1), in connection with

18 | business financing services, as set forth in Exhibit A.

19 | 4. Defendants waive any claim that they may have under the Equal Access to

20 || Justice Act, 28 U.S.C. § 2412, concerning the prosecution of this action through

21 || the date of this Order, and agree to bear their own costs and attorney fees.

22 || 5. Defendants and the Commission waive all rights to appeal or otherwise

23 | challenge or contest the validity of this Order.

24 DEFINITIONS

25 For purposes of this Order, the following definitions shall apply:

26 || A. “Asset” means any legal or equitable interest in, right to, or claim to, any

27

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1 property, wherever located and by whomever held.

2 | B. “Clear(ly) and conspicuous(ly)” means that a required disclosure is easily

3 noticeable (1.e., difficult to miss) and easily understandable by ordinary

4 Consumers, including in all of the following ways:

5 1. In any communication that is solely visual or solely audible, the disclosure

6 must be made through the same means through which the communication is

7 presented. In any communication made through both visual and audible means,

8 such as a television advertisement, the disclosure must be presented

9 simultaneously in both the visual and audible portions of the communication

10 even if the representation requiring the disclosure is made in only one means.

11 2. A visual disclosure, by its size, contrast, location, the length of time it

12 appears, and other characteristics, must stand out from any accompanying text

13 or other visual elements so that it is easily noticed, read, and understood.

14 3. An audible disclosure, including by telephone or streaming video, must be

15 delivered in a volume, speed, and cadence sufficient for ordinary Consumers to

16 easily hear and understand it.

17 4. In any communication using an interactive electronic medium, such as the

18 Internet or software, the disclosure must be unavoidable.

19 5. The disclosure must use diction and syntax understandable to ordinary

20 Consumers and must appear in each language in which the representation that

21 requires the disclosure appears.

22 6. The disclosure must comply with these requirements in each medium through

23 which it is received, including all electronic devices and face-to-face

24 communications.

25 7. The disclosure must not be contradicted or mitigated by, or inconsistent with,

26 anything else in the communication.

27

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1 8. When the representation or sales practice targets a specific audience, such as

2 children, the elderly, or the terminally ill, “ordinary Consumers” includes

3 members of that group.

4 | C. “Credit Repair Product or Service” means any product or service

5 represented, expressly or by implication to: (1) improve any Consumer’s credit

6 report, credit record, credit history, credit profile, credit score, or credit rating;

7 or (2) provide advice or assistance to any Consumer with regard to any activity

8 or service the purpose of which is to improve a Consumer’s credit report, credit

9 record, credit history, credit profile, credit score or credit rating.

10 || D. “Consumer” means a natural person, an organization or other legal entity,

11 including a corporation, partnership, sole proprietorship, limited liability

12 company, association, cooperative, or any other group or combination acting as

13 an entity.

14 | E. “Corporate Defendant(s)” means Seek Capital, LLC, a Delaware limited

15 liability company, Seek Capital, LLC, a California limited liability company,

16 doing business as Seek Business Capital and SBC Business, and each of their

17 subsidiaries, affiliates, successors, and assigns.

18 || F. “Covered Products and Services” means any product, service, plan, or

19 program represented, expressly or by implication, to: provide any Consumer,

20 arrange for any Consumer to receive, or assist any Consumer in receiving,

21 directly or indirectly, funding, loans, lines of credit, or credit cards.

22 || G. “Defendants” means Corporate Defendants and Individual Defendant,

23 individually, collectively, or in any combination.

24 | H. “Express Informed Consent” means an affirmative act communicating

25 unambiguous assent to be charged, made after receiving and in close proximity

26 to a Clear and Conspicuous disclosure of all material information related to the

27 charge.

3-

1 | Ll. “Individual Defendant” means Roy Ferman.

2 || J. “Secured or Unsecured Debt Relief Product or Service” means:

3 a. With respect to any mortgage, loan, debt, or obligation between a person

4 and one or more secured or unsecured creditors or debt collectors, any

5 product, service, plan, or program represented, expressly or by

6 implication, to:

7 i. stop, prevent, or postpone any mortgage or deed of foreclosure sale

8 for a person’s dwelling, any other sale of collateral, any

9 repossession of a person’s dwelling or other collateral, or

10 otherwise save a person’s dwelling or other collateral from

11 foreclosure or repossession;

12 ll. negotiate, obtain, or arrange a modification, or renegotiate, settle,

13 reduce, or in any way alter any terms of the mortgage, loan, debt,

14 or obligation, including a reduction in the amount of interest,

15 principal balance, monthly payments, or fees owed by a person to a

16 secured or unsecured creditor or debt collector;

17 i. obtain any forbearance or modification 1n the timing of payments

18 from any secured or unsecured holder or servicer of any mortgage,

19 loan, debt, or obligation:

20 iv. negotiate, obtain, or arrange any extension of the period of time

21 within which a person may (1) cure his or her default on the

22 mortgage, loan, debt, or obligation, (11) reinstate his or her

23 mortgage, loan, debt, or obligation, (111) redeem a dwelling or other

24 collateral, or (iv) exercise any right to reinstate the mortgage, loan,

25 debt, or obligation or redeem a dwelling or other collateral;

26 v. obtain any waiver of an acceleration clause or balloon payment

27 contained in any promissory note or contract secured by any

_4-

1 dwelling or other collateral; or

2 vi. negotiate, obtain, or arrange (1) a short sale of a dwelling or other

3 collateral, (11) a deed-in-lieu of foreclosure, or (111) any other

4 disposition of a mortgage, loan, debt, or obligation other than a

5 sale to a third party that is not the secured or unsecured loan

6 holder;

7 The foregoing shall include any manner of claimed assistance, including

8 auditing or examining a person’s application for the mortgage, loan, debt,

9 or obligation.

10 b. With respect to any loan, debt, or obligation between a person and one or

11 more unsecured creditors or debt collectors, any product, service, plan, or

12 program represented, expressly or by implication, to: a. repay one or

13 more unsecured loans, debts, or obligations; or b. combine unsecured

14 loans, debts, or obligations into one or more new loans, debts, or

15 obligations

16 || K. “Telemarketing” means a plan, program, or campaign which is conducted to

17 induce the purchase of goods or services or a charitable contribution, by use of

18 one or more telephones and which involves more than one interstate telephone

19 call. The term does not include the solicitation of sales through the mailing of a

20 catalog which: contains a written description or illustration of the goods or

21 services offered for sale; includes the business address of the seller: includes

22 multiple pages of written material or illustrations; and has been issued not less

23 frequently than once a year, when the person making the solicitation does not

24 solicit customers by telephone but only receives calls initiated by customers in

25 response to the catalog and during those calls takes orders only without further

26 solicitation. For purposes of the previous sentence, the term “further

27 solicitation” does not include providing the customer with information about, or

5.

1 attempting to sell, any other item included in the same catalog which prompted

2 the customer's call or in a substantially similar catalog.

3 ORDER

4 I. BAN ON COVERED PRODUCTS AND SERVICES

5 IT IS ORDERED that Defendants are permanently restrained and enjoined

6 || from advertising, marketing, promoting, or offering for sale, or assisting in the

7 || advertising, marketing, promoting, or offering for sale Covered Products and

g_ || Services.

g | BAN ON SECURED AND UNSECURED DEBT RELIEF PRODUCTS AND

10 SERVICES

IT IS THEREFORE ORDERED that Defendants, whether acting directly or

D indirectly, are permanently restrained and enjoined from:

3 A. Advertising, marketing, promoting, offering for sale, or selling any Secured

4 or Unsecured Debt Relief Product or Service; and

B. Assisting others in the advertising, marketing, promoting, offering for sale,

or selling any Secured or Unsecured Debt Relief Product or Service.

16 III. BAN ON CREDIT REPAIR

IT IS THEREFORE ORDERED that Settling Defendants, whether acting

8 directly or indirectly, are permanently restrained and enjoined from:

19 A. Advertising, marketing, promoting, offering for sale, or selling any Credit

20 Repair Service; and

21 B. Assisting others in the advertising, marketing, promoting, offering for sale,

22 or selling any Credit Repair Service.

23 IV. PROHIBITION AGAINST MISREPRESENTATIONS

24 IT IS FURTHER ORDERED that Defendants, Defendants’ officers, agents,

25 || employees, and attorneys, and all other persons in active concert or participation

26 || with any of them, who receive actual notice of this Order, whether acting directly

27

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1 | or indirectly, in connection with the advertising, marketing, promoting, or offering

2 || for sale of any goods or services, are permanently restrained and enjoined from

3 || misrepresenting expressly or by implication:

4 A. that Defendants are affiliated with a business or a type of business;

5 B. that Defendants’ services will not harm Consumers’ credit scores

6 C. that Defendants charge no upfront fees;

7 D. that Consumers have authorized the charges on their invoice;

8 E. that reviews of Seek were truthful reviews by actual users of

9 Defendants’ services; and

10 F. any other fact material to Consumers concerning any good or service

11 such as the total costs; any material restrictions, limitations, or conditions;

12 or any material aspect of its performance, efficacy, nature, or central

13 characteristics.

14 V. PROHIBITION ON TELEMARKETING

15 IT IS FURTHER ORDERED that Defendants, Defendants’ officers, agents,

16 || employees, and attorneys, and all other persons in active concert or participation

17 || with any of them, who receive actual notice of this Order, whether acting directly

1g || Or indirectly, in connection with Telemarketing of any goods or services, are

19 || Permanently restrained and enjoined from violating any provision of the TSR, 16

0 C.F.R. Part 310, attached as Attachment B.

1 VI. PROHIBITION AGAINST UNAUTHORIZED CHARGES

» IT IS FURTHER ORDERED that Defendants, Defendants’ officers, agents,

4 employees, and attorneys, and all other persons in active concert or participation

A with any of them, who receive actual notice of this Order by personal service or

otherwise, whether acting directly or indirectly, in connection with the advertising,

% marketing, promoting, or offering for sale of any goods or services, are

7 permanently restrained and enjoined from billing Consumers for any charges

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1 | without having previously obtained Express Informed Consent, and having created

2 || and maintained a record of such consent.

3 VII. PROHIBITION AGAINST UNLAWFUL CONTRACT TERMS

4 IT IS FURTHER ORDERED that Defendants, Defendants’ officers, agents,

5 || employees, and attorneys, and all other persons in active concert or participation

6 || with any of them, who receive actual notice of this Order by personal service or

7 || otherwise, whether acting directly or indirectly, in connection with the advertising,

8 || marketing, promoting, or offering for sale of any goods or services, are

9 || permanently restrained and enjoined from prohibiting or restricting any Consumer,

10 || potential purchaser, or investor from communicating reviews, performance

11 || assessments, and similar analyses about Defendants’ products or services, or the

12 || conduct of Defendants; or threatening or imposing a penalty or fee against any

13 || Consumer, potential purchaser, or investor who engages in such communications.

14 VIII. COOPERATION

15 IT IS FURTHER ORDERED that:

16 Defendants must cooperate with representatives of the Commission in this

17 || case and in any investigation related to or associated with the transactions or

18 || occurrences that are the subject of the Complaint. Defendants must provide truthful

19 || and complete information, evidence, and testimony. Defendants must appear for

20 || interviews, discovery, hearings, trials, and any other proceedings that a

21 || Commission representative may reasonably request upon 5 days’ written notice, or

22 || other reasonable notice, at such places and times as a Commission representative

23 || may designate, without the service of a subpoena.

24 Ix. MONETARY JUDGMENT AND PARTIAL SUSPENSION

25 IT IS FURTHER ORDERED that:

26 A. Judgment in the amount of Forty-Eight Million Two Hundred Eighty

27 || Thousand Three Hundred Twenty-Eight Dollars ($48,280,328) is entered in favor

1 || of the Commission against Individual Defendant and Corporate Defendants jointly

2 || and severally, as monetary relief.

3 B. Defendants are ordered to pay to the Commission $250,000 within 20

4 | days of entry of this Order. Such payment must be made by electronic fund

5 || transfer in accordance with instructions provided by a representative of the

6 || Commission.

7 C. Upon such payment, the remainder of the judgment is suspended,

8 || subject to the Subsections below.

9 D. The Commission’s agreement to the suspension of part of the

10 || judgment is expressly premised upon the truthfulness, accuracy, and completeness

11 || of Defendants’ sworn financial statements and related documents (collectively,

12 || “financial representations”) submitted to the Commission, namely:

13 1. the Financial Statement of Individual Defendant Roy Ferman

14 signed on March 3, 2025, including the attachments:

15 2. the Financial Statement of Individual Defendant Roy Ferman

16 signed on September 10, 2025, including the attachments;

17 3. the Financial Statement of Corporate Defendants signed by

18 Defendant Roy Ferman on March 3, 2025, including the

19 attachments:

20 4. the Financial Statement of Corporate Defendants signed by

21 Defendant Roy Ferman on September 10, 2025, including the

22 attachments:

23 5. the additional documentation submitted by email from Defendants’

24 counsel Peter Steinman to Commission counsel Maya Sequeira

25 dated March 13, 2025:

26

27

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1 6. Defendants’ responses to expedited interrogatories dated April 9,

2 2025;

3 7. Individual Defendant’s responses to second set of expedited

4 interrogatories dated May 16, 2025;

5 8. Individual Defendant’s further supplemental responses to second

6 set of expedited interrogatories dated September 3, 2025;

7 9. Individual Defendant’s update to Financial Statement by the

8 spreadsheet provided to Commission counsel on May 23, 2025;

9 10. the additional documentation submitted by email from Individual

10 Defendant’s counsel Matthew Rapkowski to Commission counsel

11 Maya Sequeira, Katherine Worthman, and Julia Heald dated

12 September 5, 8, 11, and 12, 2025; and

13 11. the additional documentation submitted by email from

14 Defendants’ counsel Collin H. Craig to Commission counsel Maya

15 Sequeira, Katherine Worthman, and Julia Heald dated September

16 6, 9, and 11, 2025.

17 E. — The suspension of the judgment will be lifted as to any Defendant if,

18 || upon motion by the Commission, the Court finds that Defendant failed to disclose

19 || any material Asset, materially misstated the value of any Asset, or made any other

20 || material misstatement or omission in the financial representations identified above.

21 F. Ifthe suspension of the judgment is lifted, the judgment becomes

22 || immediately due as to that Defendant in the amount specified in Subsection A

23 || above (which the parties stipulate only for purposes of this Section represents the

24 || Consumer injury alleged in the complaint), less any payment previously made

25 || pursuant to this Section, plus interest computed from the date of entry of this

26 | Order.

27

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1 X. ADDITIONAL MONETARY PROVISIONS

2 IT IS FURTHER ORDERED that:

3 A. Defendants relinquish dominion and all legal and equitable right, title,

4 | and interest in all Assets transferred pursuant to this Order and may not seek the

5 || return of any Assets.

6 B. The facts alleged in the Complaint will be taken as true, without

7 || further proof, in any subsequent civil litigation by or on behalf of the Commission,

8 || including in a proceeding to enforce its rights to any payment or monetary

9 || judgment pursuant to this Order, such as a nondischargeability complaint in any

10 || bankruptcy case.

11 C. The facts alleged in the Complaint establish all elements necessary to

12 || sustain an action by the Commission pursuant to Section 523(a)(2)(A) of the

13 || Bankruptcy Code, 1] U.S.C. § 523(a)(2)(A), and this Order will have collateral

14 || estoppel effect for such purposes.

15 D. — Each Defendant acknowledges that Defendant’s Employer

16 || Identification Number, Social Security Number, or other Taxpayer Identification

17 || Number (“TIN”), including all TINs that Defendants previously provided, may be

18 || used by the Commission for reporting and other lawful purposes, including

19 || collecting on any delinquent amount arising out of this Order in accordance with

20 | 3LUS.C, $7701.

21 E. — All money received by the Commission pursuant to this Order may be

22 || deposited into a fund administered by the Commission or its designee to be used

23 || for Consumer relief, such as redress and any attendant expenses for the

24 || administration of any redress fund. Ifa representative of the Commission decides

25 | that direct redress to Consumers is wholly or partially impracticable or money

26 || remains after such redress is completed, the Commission may apply any remaining

27 || money for such related relief (including Consumer information remedies) as it

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1 || determines to be reasonably related to Defendants’ practices alleged in the

2 || Complaint. Any money not used for relief is to be deposited to the U.S. Treasury.

3 || Defendants have no right to challenge any actions the Commission or its

4 | representatives may take pursuant to this Subsection.

5 XI CUSTOMER INFORMATION

6 IT IS FURTHER ORDERED that Defendants, Defendants’ officers, agents,

7 || employees, and attorneys, and all other persons in active concert or participation

8 || with any of them, who receive actual notice of this Order by personal service or

9 || otherwise, are permanently restrained and enjoined from directly or indirectly:

10 A. failing to provide sufficient customer information to enable the

11 || Commission to efficiently administer Consumer redress. If a representative of the

12 || Commission requests in writing any information related to redress, Defendants

13 || must provide it, in the form prescribed by the Commission, within 14 days.

14 B. disclosing, using, or benefitting from customer information, including

15 || the name, address, telephone number, email address, social security number, other

16 || identifying information, or any data that enables access to a customer’s account

17 || (including a credit card, bank account, or other financial account), that any

18 || Defendant obtained prior to entry of this Order in connection with the advertising,

19 || marketing, promoting, or offering for sale of financial product or services; and

20 C. failing to destroy such customer information in all forms in their

21 || possession, custody, or control within 30 days after receipt of written direction to

22 || do so from a representative of the Commission.

23 Provided, however, that customer information need not be disposed of, and

24 || may be disclosed, to the extent requested by a government agency or required by

25 || law, regulation, or court order.

26 XII. ORDER ACKNOWLEDGMENTS

27

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1 IT IS FURTHER ORDERED that Defendants obtain acknowledgments of

2 | receipt of this Order:

3 A. — Each Defendant, within 7 days of entry of this Order, must submit to

4 | the Commission an acknowledgment of receipt of this Order sworn under penalty

5 || of perjury.

6 B. For 10 years after entry of this Order, the Individual Defendant for

7 || any business that such Defendant, individually or collectively with any other

8 || Defendants, is the majority owner or controls directly or indirectly, and each

9 || Corporate Defendant, must deliver a copy of this Order to: (1) all principals,

10 | officers, directors, and LLC managers and members; (2) all employees having

11 || managerial responsibilities for conduct related to the subject matter of the Order

12 || and all agents and representatives who participate in conduct related to the subject

13 || matter of the Order; and (3) any business entity resulting from any change in

14 | structure as set forth in the Section titled Compliance Reporting. Delivery must

15 || occur within 7 days of entry of this Order for current personnel. For all others,

16 || delivery must occur before they assume their responsibilities.

17 C. From each individual or entity to which a Defendant delivered a copy

18 || of this Order, that Defendant must obtain, within 30 days, a signed and dated

19 || acknowledgment of receipt of this Order.

20 XII. COMPLIANCE REPORTING

21 IT IS FURTHER ORDERED that Defendants make timely submissions to

22 || the Commission:

23 A. One year after entry of this Order, each Defendant must submit a

24 || compliance report, sworn under penalty of perjury:

25 1. Each Defendant must: (a) identify the primary physical, postal,

26 and email address and telephone number, as designated points of contact,

27

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1 which representatives of the Commission may use to communicate with

2 Defendant; (b) identify all of that Defendant’s businesses by all of their

3 names, telephone numbers, and physical, postal, email, and Internet

4 addresses; (c) describe the activities of each business, including the goods

5 and services offered, the means of advertising, marketing, and sales, and the

6 involvement of any other Defendant (which Individual Defendant must

7 describe if they know or should know due to their own involvement); (d)

8 describe in detail whether and how that Defendant is in compliance with

9 each Section of this Order; and (e) provide a copy of each Order

10 Acknowledgment obtained pursuant to this Order, unless previously

11 submitted to the Commission.

12 2. Additionally, the Individual Defendant must: (a) identify all

13 telephone numbers and all physical, postal, email and Internet addresses,

14 including all residences; (b) identify all business activities, including any

15 business for which such Defendant performs services whether as an

16 employee or otherwise and any entity in which such Defendant has any

17 ownership interest; and (c) describe in detail such Defendant’s involvement

18 in each such business, including title, role, responsibilities, participation,

19 authority, control, and any ownership.

20 B. For 20 years after entry of this Order, each Defendant must submit a

21 || compliance notice, sworn under penalty of perjury, within 14 days of any change

22 || in the following:

23 1. Each Defendant must report any change in: (a) any designated

24 point of contact; or (b) the structure of any Corporate Defendant or any

25 entity that Defendant has any ownership interest in or controls directly or

26 indirectly that may affect compliance obligations arising under this Order,

27

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1 including: creation, merger, sale, or dissolution of the entity or any

2 subsidiary, parent, or affiliate that engages in any acts or practices subject to

3 this Order.

4 2. Additionally, the Individual Defendant must report any change

5 in: (a) name, including aliases or fictitious name, or residence address; or

6 (b) title or role in any business activity, including any business for which

7 such Defendant performs services whether as an employee or otherwise and

8 any entity in which such Defendant has any ownership interest, and identify

9 the name, physical address, and any Internet address of the business or

10 entity.

11 C. Each Defendant must submit to the Commission notice of the filing of

12 || any bankruptcy petition, insolvency proceeding, or similar proceeding by or

13 || against such Defendant within 14 days of its filing.

14 D. Any submission to the Commission required by this Order to be

15 || sworn under penalty of perjury must be true and accurate and comply with 28

16 | US.C_§ 1746 such as by concluding: “I declare under penalty of perjury under

17 || the laws of the United States of America that the foregoing 1s true and correct.

18 || Executed on: ____” and supplying the date, signatory’s full name, title (if

19 || applicable), and signature.

20 E. — Unless otherwise directed by a Commission representative in writing,

21 || all submissions to the Commission pursuant to this Order must be emailed to

22 || DEbrief@ftc.gov or sent by overnight courier (not the U.S. Postal Service) to:

23 || Associate Director for Enforcement, Bureau of Consumer Protection, Federal

24 || Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580. The

25 || subject line must begin: FTC v. Seek Capital, LLC, et al., X250013.

26 XIV. RECORDKEEPING

27

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1 IT IS FURTHER ORDERED that Defendants must create certain records for

2 || 20 years after entry of the Order, and retain each such record for 5 years.

3 || Specifically, Corporate Defendants in connection with the advertising, marketing,

4 | promoting, or offering for sale of any goods or services and the Individual

5 || Defendant for any business that such Defendant, individually or collectively with

6 || any other Defendants, is a majority owner or controls directly or indirectly must

7 || create and retain the following records:

8 A. accounting records showing the revenues from all goods or services

9 || sold;

10 B. _ personnel records showing, for each person providing services,

11 || whether as an employee or otherwise, that person’s: name; addresses; telephone

12 || numbers; job title or position; dates of service; and (if applicable) the reason for

13 |) termination;

14 C. □ records of all Consumer complaints and refund requests concerning

15 || the subject matter of this Order, whether received directly or indirectly, such as

16 || through a third party, and any response;

17 D. all records necessary to demonstrate full compliance with each

18 || provision of this Order, including all submissions to the Commission; and

19 E. — acopy of each unique advertisement or other marketing material.

20 XV. COMPLIANCE MONITORING

21 IT IS FURTHER ORDERED that, for the purpose of monitoring

22 || Defendants’ compliance with this Order, including the financial representations

23 || upon which part of the judgment was suspended, and any failure to transfer any

24 || Assets as required by this Order:

25 A. Within 14 days of receipt of a written request from a representative of

26 | the Commission each Defendant must: submit additional compliance reports or

27

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1 || other requested information, which must be sworn under penalty of perjury: appear

2 || for depositions; and produce documents for inspection and copying. The

3 || Commission is also authorized to obtain discovery, without further leave of court,

4 | using any of the procedures prescribed by Federal Rules of Civil Procedure 29, 30

5 || (including depositions by remote means), 31, 33, 34, 36, 45, and 69.

6 B. For matters concerning this Order, the Commission is authorized to

7 || communicate directly with each Defendant. Defendant must permit

8 || representatives of the Commission to interview any employee or other person

9 | affiliated with any Defendant who has agreed to such an interview. The person

10 || interviewed may have counsel present.

11 C. The Commission may use all other lawful means, including posing,

12 || through its representatives as consumers, suppliers, or other individuals or entities,

13 || to Defendants or any individual or entity affiliated with Defendants, without the

14 || necessity of identification or prior notice. Nothing in this Order limits the

15 || Commission’s lawful use of compulsory process, pursuant to Sections 9 and 20 of

16 || the FTC Act, JSUS.C. §§ 49, 57b-1.

17 D. Upon written request from a representative of the Commission, any

18 || consumer reporting agency must furnish consumer reports concerning Individual

19 || Defendant, pursuant to Section 604(1) of the Fair Credit Reporting Act, 15 U.S.C.

20 || $1681 b(a)(1).

21 XVI. RETENTION OF JURISDICTION

22 IT IS FURTHER ORDERED that this Court retains jurisdiction of this

23 || matter for purposes of construction, modification, and enforcement of this Order.

24 ORDERED this >? of SEPTEMBER a0 05.

25

26 (9 (Ractonas

07 Honorable R. Gary Klauser

United States District Judge

1 | SO STIPULATED AND AGREED:

2 | FOR PLAINTIFF:

3 || DATED: September 23, 2025 s/ Maya Sequeira

MAYA SEQUEIRA (pro hac vice)

4 msequeira@ftc.gov

5 (202) 326-3719

KATHERINE WORTHMAN (pro hac vice)

6 kworthman@ftc.gov

7 (202) 326-2929

JULIA E. HEALD (pro hac vice)

8 jheald@fic.gov

9 (202) 326-3589

SALLY TIEU, Cal. Bar No. 346034

10 stieu@ftc.gov

11 (202) 304-7313

FEDERAL TRADE COMMISSION

12 600 Pennsylvania Avenue, N.W.

13 Mail stop CC-10232

4 Washington, D.C. 20580

15 AARON SCHUE, Cal. Bar No. 338760

aschue@ftc.gov

16 (310) 824-4306

17 FEDERAL TRADE COMMISSION

10990 Wilshire Boulevard, Suite 400

18 Los Angeles, CA 90024

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1 || FOR DEFENDANTS: ee

oy (lin. (rig

2 DATED: — §DD8401224C54CF .,;§ □□□□□□□□□□□□□□□□□□□□□□□

COLLIN H. CRAIG (CA Bar No. 339194)

3 ccraig@porterscott.com

4 (916) 929-1481

MARTIN N. JENSEN (CA Bar No. 232231)

5 myjensen@porterscott.com

6 PORTER SCOTT, A PROFESSIONAL

CORPORATION

7 2180 Harvard Street, Suite 500

8 Sacramento, CA 95815

9 Attorneys for Defendants Seek Capital, LLC,

10 a Delaware limited liability company, Seek

Capital, LLC, a California Limited Liability

11 Company, and Roy Ferman

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-]9-

DocuSigned by:

) [neal Kaplowste

1 DATED: S/ DB9SSES9E27C4a4... ————_——_

RICHARD W. EPSTEIN (pro hac vice)

2 Richard.epstein@gmlaw.com

3 (954) 491-1120

GREENSPOON MARDER LLP

4 200 East Broward Blvd., Suite 1800

5 Fort Lauderdale, FL 33301

6 RICHARD GILLER (CA Bar No. 117823)

7 Richard. giller@gmlaw.com

(323) 880-0859

8 GREENSPOON MARDER LLP

9 1875 Century Park East, Suite 1900

Los Angeles, CA 90067

10

1 MATTHEW S. RAPKOWSKI

Matthew.rapkowski@gmlaw.com

12 (212) 524-4997

13 GREENSPOON MARDER LLP

1345 Avenue of the Americas, Suite 2200

14 New York, NY 10105

15

6 Attorneys for Defendant Roy Ferman

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1 | DATED: Yo/y

/-ROY FERMAR, Defendant

5 SEEK CAPITAL, LLC, a Delaware limited

6 liability company, Defendant

7 By: Roy Fe 7Chief Executive Officer

9 stk CAPITAL, LLC, a California limited

10 liability company, Defendant

1] By: Roy Ferman, Chief Executive Officer

12

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ATTACHMENT A

Case 2:24-cv-09511-RGK-MAA Document _ Filed 09/16/25 Pagei1of19 Page ID

#11220

. NO IS6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et ai.

Present: The Honorable R.GARY KLAUSNER, UNITED STATES DISTRICT JUDGE

Joseph Remigio Not Reported N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiff: Attorneys Present for Defendants:

Not Present Not Present

Proceedings: (IN CHAMBERS) Order Re: The FTC’s Motion for Summary Judgment

[75]; Defendant Roy Ferman’s Motion for Partial Summary Judgment

[92]

L INTRODUCTION

On November 4, 2024, the Federal Trade Commission (the “FTC”) filed a Complaint against

Seek Capital, LLC, a Delaware limited liability company, Seek Capital. LLC, a California limited

liability company (both entities collectively, “Seek’), and the entities’ CEO, Roy Ferman (collectively,

“Detendants”). The FTC asserts claims for violations of Section 5(a) of the FTC Act (“FTCA”), the

Telemarketing Sales Rule (“TSR”), and the Consumer Review Faimess Act (“CRFA”). (ECF No. 1.)

On January 17, 2025, the FTC filed a Motion for a Preliminary Injunction, requesting the Court

enjoin Defendants from certain prohibited conduct. (ECF No. 30.) On February 20, 2025, the Court

granted and ordered the preliminary injunction. (ECF No. 50.)

Presently before the Court are two motions: the FTC’s Motion for Summary Judgment (ECF.

No. 75) and Ferman’s Motion for Partial Summary Judgment (ECF No. 92). For the following reasons,

the Court GRANTS in part the FTC’s Motion and DENIES Ferman’s Motion.

i. FACTUAL BACKGROUND

The following facts are uncontroverted! unless otherwise stated:

Ferman is the founder, CEO, and board member of Seek, a business funding matching company

that has marketed its services to new and aspiring small business owners. (The FTC’s Resp. to Statement

of Genuine Disputes of Material Fact (“FTC RSF”), 9 5, ECF No. 99-1]; Compl. § 2; Answer 4 14, ECF

' Defendants make numerous objections to the evidence presented in opposition to the FTC’s Motion. To the extent the Court

relies upon evidence to which Defendants have objected. the objections are OVERRULED. To the extent the Court does not

rely upon evidence to which Defendants have objected. the objections are DENIED as moot,

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NO IS6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et ai.

No. 24; Ferman Decl., □□ 4, 13, ECF No. 91-3 (“Ferman Decl.”).) Although Seek technically

encompasses two corporate entities, Seek functions and Defendants treat it as one: (FTC RSF 4] 12-13.)

As Seek’s founder and CEO, Ferman has participated in and has authority over Seek’s business

operations, including signing corporate formation documents, corporate bank accounts, and third-party

contracts as well as serving as the primary contact for Seek’s lead generators, payment processors, and

domain registrars and hirmg and firmg Seek personnel. (Jd. {J 5—8, 9, 10, 14-15, 16, 21, 24-31.)

Ferman has also been involved m Seek’s business with respect to its marketing strategy, lender

conununications, and reviewing and responding to consumer complaints concerning Seek’s business.

(Ud. 99 27, 28, 32, 34-35, 50-51, 115, 138.)

Defendants have marketed their purported services to consumers through internet

advertisements, Seek’s website, third-party websites, emails to consumers, and telemarketing. (See, e.¢.,

id. 9 41, 47, 54, 60, 64.) Within these marketing efforts, Defendants have made several types of

representations concerning their business, including that (1) they would secure business loans or lines of

credit for customers (id. 99 42-43, 45, 49-52 54, 57, 61, 64-66, 68-69); (2) Seek had a relationship with

lenders that provided Seek customers benefits unavailable to the public (id. §] 102-107); (3) they would

secure credit cards with line of credit capabilities (7d. 133-134, 136); (4) they would secure specific

financing terms, such as zero percent annual percentage rate (“APR”) for a specified time (id. JF 143-

46); (5) Seek would not charge fees until funding was approved (id. | 152-53, 155, 158, 159); (6)

Seek’s services would not harm customers’ credits scores (id. 57, 168-69, 174); and (7) Seek

received overwhelmingly positive customer reviews (see id. J] 182-83).

Seek’s business services involved applying exclusively for credit cards with lenders on behalf of

its customers. Ud. {ff 38, 93.) If consumers were interested in Seek’s services, Seek’s telemarketers

would call and send them a “Funding Estimate Agreement” (“FEA”), which outlined the business terms,

including fees. Ud. 9 78; Ferman Decl. { 28.) Soon after the FEA was signed, Seek would have

consumers sign a notarized Limited Powers of Attorney, which gave Seek the authority to submit credit

and loan facilities on a consumer’s behalf. (FTC RSF § 88.) After those agreements were signed, Seek

would conduct a verification call with customers to gather further information about their funding needs.

(Ud. § 89.) During or after this call, Seek would send customers a pre-filled form contract, the

“Verification and Compliance Questionnaire” (“VCQ”), for their signature. (/d. ¥ 90.) Since at least

November 4, 2021, the VCQ has contained a clause prohibiting customers from posting online any

negative comments, reviews, or complaints about Seek for three years. (/d. {| 217.) After the VCQ was

signed, Seek would submit the credit card applications to lenders. Ud. § 94.)

When applying for credit cards for customers, Seek has secured more credit than the maximum

funding amount a customer had explicitly approved. (/d. 4] 205, 207.) Additionally. Seek would acquire

eredit cards with varying financing terms, some with and without a zero percent APR. (/d. ¥ 147:

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#:11222

. NO IS6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et al.

Ferman Decl. (J 15-16.) During the credit card application process, “hard” credit inquiries were

conducted to check Seek’s customers’ credit scores. (FTC RSF 175.)

Defendants have received negative feedback from customers and lenders alike. For example,

Defendants have received and prepared responses to consumer complaints concerning Seek’s business

practices. (See id. 34-35, 39.) More specifically, Defendants have received feedback from some

customers that they were surprised and “unhappy” to learn their funding would be provided with credit

eards. (Ud. | 96.) Additionally, Defendants have recerved cease-and-desist letters from banks concerning

Defendants’ credit card application practices. (/d. 4] 113-16.)

Over the course of business operations, Defendants have charged customers several fees,

including funding fees (based on a percentage of the credit card limits Seek secured), application fees,

‘same-day funding fees (for optional expediting application services), and bank negotiation fees (for

optional bank negotiation services). (Id. [J 198, 201-02, 220, 229, 230.) Additionally, Defendants have

charged customers early termination fees when they have canceled services after signing the FEA and

before receiving funding. (/d. 160.) In total, these fees have resulted in customers paying Seek

$48,280,328.57, after subtracting credits, refunds, or disputes. Ud. { 231.)

Tit. JUDICIAL STANDARD

De. Motions for Summary Judgment

Under Federal Rule of Civil Procedure 56(a), a court may grant summary judgment only if “there

is No genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). To prevail on a summary judgment motion, the movant must show that there are

no genuine issues of material fact as to matters on which it has the burden of proof at trial. See Ce/otex

Corp. v. Catrett, A77 U.S. 317, 325 (1986). Upon such a showing, the Court may grant summary

judgment on all or part of the claim. Fed. R. Civ. P. 56(a).

To defeat a summary judgment motion, the non-moving party may not merely rely on its

pleadings or on conclusory statements. See Celotex, 477 U.S. at 324. Nor may the non-moving party

merely attack or discredit the moving party’s evidence. Nat’ Union Fire Ins. Co. v. Argonaut Ins. Co.,

701 F.2d 95, 96-97 (9th Cir. 1983). The non-moving party nist affirmatively present specific evidence

sufficient to create a genuine issue of material fact for trial. See Celotex, 477 US. at 324. The

materiality of a fact is determined by whether it might influence the outcome of the case based on the

contours of the underlying substantive law. Anderson v. Liberty Lobby, Inc., 477 ULS. 242, 248 (1986).

Disputes over such facts amount to genuine issues if a reasonable jury could resolve them in favor of the

nonmoving party. Id.

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#11223

. NO IS6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et ai.

The Court first addresses the FTC’s Motion for Summary Judgment before considermg Ferman’s

Motion for Partial Summary Judgment

IV. THE FTC’S MOTION FOR SUMMARY JUDGMENT

A. Discussion

The FTC moves for summary judgment, seeking judgment that: (1) Defendants’

misrepresentations violated the FTCA and TSR; (2) Defendants’ unauthorized and deceptive billing

practices violated the FTCA: (3) Defendants’ form contract violated the CRFA; (4) Defendants are

liable as a common enterprise; (5) Defendants’ affirmative defenses fail; and (6) Defendants are liable

for injunctive and monetary relief. The Court addresses each argument in turn.

iis Misrepresentations

Section 5 of the FTCA prohibits “unfair methods of competition in or affecting commerce. and

unfair or deceptive acts or practices in or affecting commerce.” 15 U.S.C. § 45(a)(1). Similarly, the FTC

enacted the TSR because of a directive from Congress to “preseribe miles prohibiting deceptive

telemarketing acts or practices and other abusive telemarketing acts or practices.” 15 ULS.C. §

6102(a)(1). Any violation of the TSR constitutes an unfair and deceptive act or practice in violation of

Section 5 of the FTC Act. 15 U.S.C. § 57a(d)(3), § 6102(b), (c).

Under the FTCA, a representation is considered deceptive if it is (1) likely to mislead consumers

acting reasonably under the circumstances, and (2) material. FTC v. Pantron I Corp., 33 F.3d 1088,

1095 (9th Cir. 1994). In assessing whether a representation or practice is likely to mislead consumers, a

court may consider the overall “net umpression” conveyed by the representation. F7C v.

Cyberspace.Com, LLC, 453 F.3d 1196. 1200 (9th Cir. 2006) (“A solicitation may be likely to mislead by

virtue of the net impression it creates even though the solicitation also contains truthful disclosures.”).

Evidence of past deception is “highly probative to show that a practice is likely to mislead consumers

acting reasonably under the circumstances.” /d. at 1201.

Similarly, the TSR prohibits telemarketing practices that include misrepresentations as to.

material information, like “[a]ny material aspect of the performance, efficacy, nature, or central

characteristics of goods or services that are the subject of a sales offer... .” 16 C.F.R. § 310.3(a)\(2)Gi)

Here, the FTC asserts Defendants misrepresent that: (1) they procure loans or lines of credit for

customers when they actually obtain credit cards; (2) they have relationships with lenders; (3) they offer

credit cards with “line of credit capability”; (4) they offer specific favorable financing terms, like zero

percent APR; (5) they charge no fees until their customer receives funding; (6) using their services will

not harm their customers’ credit scores; and (7) their business reviews are positive. Defendants do not

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#11224

. NO IS6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et al.

dispute making these representations. Nor do they dispute that these statements are material. Indeed,

express claims about the nature of a defendant’s services are presumed material. See Pantron J Corp., 33

E.3d at 1095—96. Instead, they dispute only whether the representations were false and misleading. The

Court analyzes each: representation in tum.

a. Business Loans and Lines of Credit

The FTC asserts that Defendants represent through advertisements, Defendants’ website,

representations on third-party websites, emails to consumers, and telemarketing calls that they procure

loans or lines of credit when, m practice, they only secure credit cards. Defendants concede such

representations were made, including claims like “Need a Business Startup Loan?” and confirming

consumers can obtain funding through “the line of credit route.” (See, e.g., FTC RSF § 43, 65.)

The FTC argues that these representations are false and misleading given that Defendants solely

apply for credit cards for customers, not loans or lines of credit, and many of these representations do

not specifically reference credit cards. Defendants do not dispute that they only procure credit cards for

customers. Instead, Defendants argue that these representations are truthful because credit cards are

technically lines of credit and are classified as revolving loans. Looking to the net impressions of these

representations, the Court finds that there is a genuine dispute of material fact as to whether these

representations concemung loans and lines of credit are misleading.

The FTC has pointed to persuasive evidence that indicates that these representations could be

misleading. For instance, when Defendants have explicitly referenced credit cards in their business

offermgs, the references were alongside offers for loans and lines of credit, which may mislead

consumers to believe that the loans or lines of credit were in addition to, rather than were themselves,

the credit cards. (See, e.¢., Limited Power of Attorney, Ex. E at § 1, ECF No. 91-8 (“pursuit and

acquisition of credit and loan facilities (credit and loan facilities will consist of one or more of the

following: business and personal credit cards, bank lines of credit and bank loans) .. . .”) Additionally,

Ferman agreed with a third party that Defendants representing that they could secure “loans” in

advertising copy was “misleading.” (FTC RSF 4 97.) In fact, Seek’s clients have confirmed they were

surprised and “unhappy” that the funding Seek had advertised about would be provided through credit

cards. Ud. 496.) See F.T.C. v. Cyberspace.Com LLC, 453 F.3d 1196, 1201 (9th Cir. 2006) (noting that

evidence that representations deceived consumers highly probative to show that a practice is likely to

mislead consumers acting reasonably under the circumstances”).

However, as Defendants argued mm their Opposition, courts im the Ninth Circuit have considered

credit cards to be lines of credit and are classified as revolving loan account arrangements. See Ward v.

Costco Wholesale Corp., 2009 WL_10670191, at *1 (C.D. Cal. May 6, 2009) (noting the outstanding

balance on a credit card is a line of credit): F.7.C. v.. Am. Standard Credit Sys., Inc., 874 F. Supp. 1080.

1085 (C.D, Cal, 1994) (referencing “credit card” synonymously with a “line of credit”); Hernandez v.

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#11225

. NO 586

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et al.

Experian Info. Sols., Inc., 2021 WL.2325019, at *3 (C_D. Cal. June 4, 2021), rev'd and remanded, 2022

WL 1315306 (9th Cir. May 3, 2022) (“for revolving loans like credit cards”); Du-Phillips v. Citibank,

N.A., No. CV 25-00034 JAO-RT, 2025 WL 1615329. at *6 (D. Haw. June 5, 2025) (noting that a credit

card is. a “revolving loan account arrangement”); but see Wisdom v. Wells Fargo Bank NA, 2012 WL

170900, at *1 (D. Ariz. Jan. 20, 2012) (differentiating between a plaintiffs personal credit card and a

line of credit on his home). This precedential understanding that credit cards are a type of line of credit

and are classified as revolving loans introduces a dispute of fact that could be reasonably resolved in the

Defendants’ favor. Thus, the Court finds that a genuine dispute of material fact exists as to whether

Defendants’ representations concernimg loans and lines of credit are misleading.

b. Relationships with Lenders

The FTC contends that Defendants misrepresent Seek’s relationships with lenders. It is

undisputed that Defendants have claimed in sales pitches to consumers that Seek has “special” and

“direct relationships” with lenders and banks, that they “do not accept a single penny” from their lending

partners, and that Seek can provide consumers with access to publicly unavailable programs. (FTC RSF

§§ 102-05, 108.) The parties dispute the veracity of these representations.

The FTC argues that these representations are false and misleading, noting that, in actuality,

banks have sent Seek cease-and-desist letters, admonishing its business practices, and have

automatically declined credit card applications connected with Defendants. (7d. 97 113-16, 126.)

Additionally, Defendants have adinitted that they do not have relationships with lenders that benefit

consumers, and that their only agreements with banks are to compensate Seek in exchange for matching

and referring customers. (7d. § 109.)

In their Opposition, Defendants offer no argument to contest the FTC’s assertions but rather

dispute ancillary facts to this issue. However, the record is clear that Defendants in fact did not have

relationships with lenders that would provide consumers any sort of unique benefit as they had

represented, Additionally, Defendants accepted compensation from lenders, which directly conflicts

with their marketing representations. The Court agrees with the FTC that these false claims were likely

to deceive consumers looking to benefit from Seek’s purported relationships with lenders. Thus, these

representations are misleading and violate the FTCA and TSR.

c. Line of Credit Capability

Next, the FTC asserts that when Defendants told consumers their services involve procuring

credit cards, they misrepresented that the cards have “line of credit capabilities,” which Defendants do

not dispute. id. Ff 129. 131-32.) The FTC further asserts that in actual practice, Defendants do not

obtain credit cards with line of credit capabilities, ike providing access to cash, which again Defendants

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#11226

. NO IS6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et ai.

do not dispute. (See, é.g., id. 142 (citmg Munoz Decl., Attach. D § 11, ECF No 8-3 (“Neither credit

card provided [my] business with a revolving line of credit allowing access to:cash as promised.”)).)

Defendants do dispute that this representation is misleading. Defendants argue that advertising

their credit cards “with line of credit capability” is not a misrepresentation but rather a descriptive add

on to describe a method in which the credit card could be used. Defendants claim that when paired with

Seek’s services, their offered credit cards have adopted characteristics of other types of lines of credit.

However, as this Court has noted previously. the fact that some credit cards have that feature

does not make Defendants’ indiscriminate use of the term “credit cards with line of credit capability”

nondeceptive. (ECF No. 50.) The undisputed record shows that consumers have been unable to use the

Seek-procured credit cards as another type of line of credit, like liquidating them for cash access, beyond

the features of a standard credit card. (FTC RSF 4 141.) It is clear to the Court that representations that a

credit card has line of credit capabilities would mislead a reasonable consumer to believe that the credit

card would have additional capabilities than those traditional to that funding source. Thus, there is no

genuine dispute that these misrepresentations are misleading.

d. Financing Terms

The FTC asserts that Defendants have represented that Seek offers consumers a zero percent

APR financing term, claiming there will be “no interest repayments for the first 12 months” and “0%

interest for first 12-18 months.” U/d. 4] 143-45.) Despite these representations to consumers, Defendants

have secured credit cards without such financing terms. For example, for one consumer, Defendants

‘secured at least ten credit cards, many of which did not have a twelve-month zero percent APR. Ud. §

148.)

Defendants have admitted that they have secured credit cards without a zero percent APR. Ud. §]

147.) However, they argue that the financing terms were truthful and not misleading because for the

credit cards secured at a non-zero percent rate, Defendants intended to merge those cards with zero

percent APR credit cards. Defendants assert that clients were informed of this funding strategy and were

told not to use the non-zero percent APR credit cards, and thus the net impression of the representations

regarding the financing terms was truthful. The Court disagrees.

Subsequent disclosures do not necessarily cure an initial deception. FTC v. Resort Car Rental

Sys., 518 F.2d 962. 964 (9th Cir. 1975). The FTCA “is violated if [the defendant] mduces the first

contact through deception, even if the buyer later becomes fully informed before entering the contract.”

Id. Thus, even if Defendants did clarify with customers after Seek applied for credit cards on their behalf

that some were non-zero percent APR credit cards, this subsequent disclosure does not cure the initial

misleading representation. Defendants fail to address that falsely advertismg specific financing terms is

inisleading to a reasonable consumer. Considering the net impressions of such representations along

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#11227

. NO 586

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et al.

with the subsequent disclosures, the Court finds that there is no genuine dispute that these

representations were false and misleading, in violation of the FTCA and TSR.

No Fees Until Funding

Next, the FTC contends that Defendants have claimed to consumers that Seek does not charge

“upfront fees,” its fees are results-based, and no costs are incurred until funding is approved. (FTC RSF

§ 152-53, 155.) The FTC argues that these claims are false, offering evidence that Defendants would

actually charge consumers early termination fees before they were approved for the promised funding if

consumers cancelled the transaction after the FEA was signed.

Defendants do not dispute that they made such representations or that Seek has charged

customers an early termination fee, which is non-contingent on funding approval or any other result.

Defendants argue that the early termination fee has been disclosed multiple times to customers in

writing and over the phone, including within the FEA in red font (which stands out against the all-black

type page). Defendants also argue that clients have the right to rescind the early termination fee during a

verification call with Seek personnel, and thus these representations are not misleading. The Court is not

convinced,

The undisputed fact remains that Defendants represented to consumers that Seek did not charge

any upfront fees and that its fees were results driven, but then did charge consumers a fee without

customers receiving funding approval or any other result. Moreover, the FTC has presented undisputed

evidence that Defendants’ customers have been rushed to sign the FEA and were told they did not need

to read it. Ud. $f] 84, 86.) As a result, the misrepresentation is not cured by the FEA disclosure. See FTC

v. Am. Fin. Benefits Ctr., 2018 WL11354861, at *9-10 (N.D. Cal. Nov. 29, 2018) (misrepresentations

not cured by disclosures in contracts consumers were rushed to e-sign at the end of sales calls); see also

FIC v. Gill, 7 F. Supp. 2d 1030, 1044 (C.D. Cal. 1999) (disclaimer in contract that “consumers

eventually sign” is insufficient where it “is not included in the representations”), Accordingly, the Court

finds that there is no genuine dispute of material fact that the misrepresentations about charging no fees

until funding violated the FTCA and TSR,

f. Credit Score Impact

The FTC posits that Defendants falsely represented to consumers that their applications only

involve “soft pull” credit inquiries and will not harm customers’ credit scores, but, in fact, they knew

that the applications involved “hard” credit inquiries. (RSF § 175.) Defendants do not dispute this

evidence, and they admit that “hard inquiries” can lower consumers’ credit scores. (See Def.’s Opp. at

10-11, ECE No. 91.)

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#11228

NO IS6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et ai.

Instead, Defendants argue that these representations concern only the initial preapproval

application, at which point Seek performs “soft credit pulls” that do not impact credit scores. Defendants

argue that after a consumer was deemed qualified based on these “soft” credit checks, Seek would

explain to the consumer that the lender would perform a “hard” credit inquiry in the next step of the

application.

However, Defendants fail to reconcile that a reasonable consumer would not know that

Defendants’ sales representations referred only to one part of the application process. Indeed. the

representations appear to concern the entire application process, not one part. For example, Ferman

drafted language for Seek’s webpage stating that Seek obtains funding for customers with “no hard

eredit pulls!” (FTC RSF § 168.) Thus, the Court finds there is no genuine dispute of material fact that

‘such representations are likely to mislead a reasonable consumer to believe there would be no “hard”

credit inquiries involved with Defendants’ services.

g. Customer Reviews

Finally, the FTC asserts that Defendants have made representations that they receive

overwhelmingly positive customer reviews, including “4.9/5 Stars,” and “98% recommend.” (FTC RSF

182.) The FTC purports that the reviews do not actually reflect consumer experience because

consumers (1) are barred from posting negative reviews for three years by the Defendants’ VCQ; and (2)

have been pressured by telemarketers into leaving positive reviews to continue through the approval

process.

Defendants do not dispute that they made such representations, nor do they dispute that the VCQ

contains such a clause barring negative feedback. Although Defendants dispute whether telemarketers

were trained to pressure consumers to leave positive reviews, they do not dispute whether telemarketers

did so in practice. Instead, Defendants argue that these representations are true because Seek does have

overwhelmingly positive reviews, citing to Ferman’s declaration discussing how the reviews appeared

authentic for support.’ Given these potentially authentic positive reviews, Defendants argue there is a

genuine dispute of material fact that their representations were accurate. The Court agrees.

The record does not demonstrate that most of the reviews are fake to the extent necessary to

render Defendants” representations undisputably false or misleading. Although there is no dispute that

Seek consumers are contractually barred from posting negative reviews for three years, the FTC failed to

? The FTC argues that Ferman’s declaration is self-serving and thus should be disregarded. Although in parts of the

declaration that may be true, here, Ferman’s statements about his analysis of the customer reviews are supported by some

facts. Thus, the Court finds them sufficient to: create a genuine issue of material fact. See FTC v. Publ’g Clearing House, Inc.

104 F.3d 1168. 1171 (9th Cir. 1997) (“A conclusory, self-serving affidavit. lacking detailed facts and any supporting

evidence. is insufficient to create a genuine issue of material fact.”).

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Case 2:24-cv-09511-RGK-MAA Document137 Filed 09/16/25 Page 10o0f19 Page

ID #:11229

. NO 586

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et ai.

establish that there is no genuine dispute that negative reviews would have existed to render Defendants’

claims misleading.

In sum, the Cout GRANTS the FTC’s Motion for Summary Judgment of violations of the

FTCA and TSR as to misrepresentations about relationships with lenders, line of credit capabilities,

financing terms, no fees until funding, and credit score impact. The Court DENIES the FTC’s Motion

for Summary Judgment of FTCA and TSR violations as to all other grounds for misrepresentation.

2. Deceptive Billing Practices

The FTC also asserts that Defendants’ billing practices violated the FTCA. A practice is unfair

under the FTCA where it “causes or is likely to cause substantial injury to consumers [that] is not

reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to

consumers or to competition.” 15 U.S.C. § 45(m). Additionally, as the Court outlined above, a practice is

deceptive “(1) if it is likely to mislead consumers acting reasonably under the circumstances (2) in a way

that is material.” Cyberspace.Com, LLC, 453 F.3d at 1199.

It is well settled that billing customers for unauthorized charges causes substantial injury. See

FIC vy, Amazon.com, Inc., 2016 WL 10654030, at *8 (W.D. Wash. Iuly 22, 2016) (collecting cases).

Consumers cannot avoid injury if they do not have a reason to anticipate impending harm and the means

to avoid it. See also FTC v, Neovi, Inc., 604 F.3d 1150, 1158 (9th Cir. 2010).

Here, the FTC asserts that Defendants have had three deceptive billing practices: (1) inflating

fees; (2) charging early termination fees; and (3) charging fees without providing the related service.

First, the FTC has presented evidence that Defendants inflate their fees by securing more credit than

their customers want. For example, a consumer requested Defendarits secure $40,000 in funding so that

he could purchase a trailer for his trucking company. (FTC RSF § 208.) Defendants told him that they

could secure $50,000 to $60,000 and ultimately sent him an invoice indicating that they had secured

more than $60,000 in credit. (ed) Defendant have admitted that they have a practice of obtaining about

“115% of Funding Proposal offered to client and in contract” when securing “actual funding.” (Ud.

207.) The FTC argues that since Defendants charge fees based on the percentage of the credit secured,

Defendants have unfairly inflated their fees without customer authorization by securing higher limits.

Defendants do not contest that they have inflated their fees in such a manner. Instead, they justify this

billing practice by arguing that they received customer approval via the signed FEA, which permits

Defendants to secure up to twenty percent above the maximum approved funding. (Ferman Decl. {J 31,

39; FEA, Ex. D, ECF No. 91-7.)

The Court finds the record to be unclear about whether this disclosure in the FEA is sufficient to

imform consumers that they agree to potentially twenty percent more funding, and thus:a larger service

fee to Seek, when signing the contract. Additionally, there is a genuine dispute as to whether a higher

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Case 2:24-cv-09511-RGK-MAA Document137 Filed 09/16/25 Page 11of19 Page

ID #:11230

NO IS6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et ai.

eredit limit, which is what the inflated fee is based on, benefits consumers by providing them access to

additional funding, thus potentially outweighing the costs of the related fees. Thus, the FTC fails to

establish that there is no genuine dispute as to whether this billing practice is unfair or deceptive.

Second, the FTC claims that Defendants’ early termination fees are an unfair billing practice. In

their Opposition, Defendants proffer a similar argument as they did for the fee inflation billing practice.

noting how the fee was disclosed verbally and in writing, including in the FEA. (Ferman Decl. 4 31,

37, FEA, Ex. D.) Whereas the record is unclear as to the inflated fees, there does not seem to be a

genuine dispute that the early termination fee is a deceptive billing practice in light of Defendants’

marketing representations concerning their fees. See supra Section IV.A.1-e. As the Court explained

above, Defendants’ representations that they charge no fees until funding is approved has been likely

misleading to consumers given that Defendants have charged customers the early termination fee prior

to funding approval. Defendants arsue that this practice was not deceptive because, along with other

arguments already addressed above, customers could request to rescind this early termination fee.

However, spending the time to make such a request is another type of harm caused by this billing

practice. See F.T.C. v. Neovi, Inc., 598 F. Supp. 2d 1104, 1115 (S-D. Cal. 2008) (noting that “harm need

not be monetary to qualify as injury” and finding that time consumers spent contesting unauthorized

checks and “attempting to get their money back” contributed to substantial injury). Thus, there appears

to be no genuine dispute of material fact that the early termination fee is a deceptive billing practice.

Finally, the FTC asserts that Defendants have charged consumers that opted for additional

‘services fees without providing the related services. As one example, the FTC posits that Defendants

charged consumers same-day finding fees to expedite their applications, but then processed the

applications in the order they were received. (FTC RSF § 201.) Defendants dispute this fact, declaring

that if a cent paid for the same day funding fee, Seek would expedite the application and would not

place it in the regular queue. Given the conflicting deposition testimonies concerning this issue, there

appears to be a genuine dispute about whether Defendants provided the same-day service. See Anderson,

477 US. at 249—50 (noting that the weight of evidence is not for the court to decide on motion for

stummary judgment).

As another example, the FTC claims that Defendants have charged customers a fee for bank

negotiation services while requiring customers to still do the work. Defendants do not dispute that

Defendants hid their involvement from numerous banks and imstructed customers who requested bank

negotiation services to speak with the bank themselves and not mention Seek. (FTC RSF § 204.) Thus, it

appears that there is no genuine dispute that consumers were charged a fee without receiving the benefit

of the requested service, and the cost-benefit prong of the unfairness test is easily satisfied. See FTC v.

JK. Publ’ns, Inc., 99 F. Supp. 2d 1176, 1201 (C.D. Cal. 2000).

Accordingly, the Court GRANTS the FTC’s Motion for Summary Judgment of FTCA violations

as to Defendants’ unfair and deceptive billing practices related to its early termination fees and charging

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Case 2:24-cv-09511-RGK-MAA Document137 Filed 09/16/25 Page 12o0f19 Page

ID #:11231

. NO IS6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et al.

for certain services not provided. The Court DENIES the FTC’s Motion for Summary Judgment of

FTCA violations as to all other alleged unfair and deceptive billing practices.

Form Contract

The CRFA prohibits offering a form contract that prohibits or restricts the ability of consumers

to leave reviews. 15 U.S.C. § 45b (b), (c). Here, the FTC has provided evidence that Defendants’ form

contract, the VCQ, contains a provision barring consumers from posting negative online reviews about

Defendants for three years. (FTC RSF 4 188.) Defendants do not dispute any material fact concerning

this violation.

Accordingly, the Court finds there is no genuine dispute of material fact that Defendants violated

the CRFA and the Court GRANTS the FTC’s Motion.

4. Common Enterprise Liability

The FTC moves to establish that Seek has acted as a common enterprise. “Where one or more

corporate entities operate in common enterprise, each may be held liable for the deceptive acts and

practices of the others.” FTC v. John Beck Amazing Profits, LLC, 865 F. Supp. 2d 1052. 1082 (C.D. Cal.

2012). When determining common enterprise liability, courts look to four factors: “(1) common control;

(2) sharing office space and offices; (3) whether business is transacted through a ‘maze of interrelated

companies’; and (4) commingling of funds,” Jd.

Here, the FTC asserts that both corporate entities were controlled by Ferman, shared the same

location, and functioned as one entity. (FTC RSF □□□ 12-13.) Defendants do not dispute these facts nor

that common enterprise lability exists. Thus, the Court finds that no fact issues exists as to whether

Seek acted as a cominon enterprise, and GRANTS the FTC’s Motion.

a. Affirmative Defenses

The FTC moves for summary judgment on all twenty of Defendants’ affirmative defenses,

arguing that they are either (1) improper negative defenses, (2) entirely unsupported, or (3) irrelevant.

Defendants do not oppose. The Court considers the affirmative defenses in the groupings the FTC

challenges them in.

a. Improper Negative Defenses

The FTC asserts that Defendants’ first (failure to state a claim), second (deficient pleading), third

(no irreparable injury), fourth (no fraudulent or deceptive business practice), sixth (no

lisrepresentations), seventh (advertising not false and deceptive), thirteenth (no reason to believe),

nineteenth (no reliance), and twentieth (no individual liability) defenses are improper negative defenses,

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Case 2:24-cv-09511-RGK-MAA Document137 Filed 09/16/25 Page 130f19 Page

ID #:11232

. NO 586

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et al.

restating denials of liability or elements of claims, and should therefore be rejected as a matter of law.

The Court agrees.

Affirmative defenses absolve defendants of liability, even in cases where “plaintiffs have stated a

prima facie case for recovery.” Quintana v. Baca, 233 F.R.D. 562, 564 (C.D.Cal.2005). “An attack on a

plaintiff's case-in-chief is not an affirmative defense.” Vogel v. Huntington Oaks Delaware Partners,

LLC, 291 F. RD. 438, 442 (C.D. Cal. 2013) (citing Zivkovic v. S. Cai, Edison Co., 302 F.3d 1080, 1088

(9th Cir.2002)). Defenses concerning a plaintiff's “failure to state a claim is not an affirmative defense:

it is a defect in a plaintiff's claim.” Voge/, 291 F.R.D, at 442.

Indeed, Defendants’ first, second, third, fourth, sixth, seventh, thirteenth, nineteenth, and

twentieth defenses all argue how the FTC failed to allege facts sufficient to establish its claims and/or

the requested relief, However, asserting defects in the FTC’s prima facie case are not affirmative

defenses. See Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1174

(N.D. Cal. 2010). Moreover, asserting factual disagreements with the merits of the FTC’s case, like how

the sixth affirmative defense argues that there were no misrepresentations, are not the proper subjects of

affirmative defenses. See Fed. Trade Comm'n v. N. Am. Mkig. & Assocs., LLC, 2012 WL 5034967, at *2

(D. Ariz. Oct. 18,2012) (holding a defendant’s “affirmative defense is a factual disagreement with the

mnerits of Plaintiff's case and not the proper subject of an affirmative defense”). Thus, these affirmative

defenses fail as a matter of law.

b. Entirely Unsupported

Next, the FTC asserts that Defendants admitted there are no facts supporting the following seven

affirmative defenses: Defendants’ eighth (laches), ninth (statute of limitations), tenth (mootness/res

judicata/collateral estoppel), eleventh (waiver/estoppel/consent), twelfth (due process, excessive fines,

and commerce clause: first amendment), fifteenth (third parties), and eighteenth (unclean hands)

defenses. The FTC argues that this is reason alone to reject the affirmative defenses,

The Court agrees that there is no genuine dispute of material fact that Defendants admitted that

there are no facts supporting the eighth, tenth, eleventh, twelfth, fifteenth, and eighteenth defenses, and

thus they fail to give sufficient notice concerning the bases for these defenses. See Desert European

Motorcars, LTD v. Desert European Motorcars, Inc., 2011 WL 3809933, at *2—4 (C.D.Cal. Aug.25,

2011) (granting a motion to strike affirmative defenses of estoppel, waiver, and laches for failure to state

any facts that provide fair notice); see also N. Am. Mktg. & Assocs., LLC, 2012 WL 5034967 at *3-5

(striking affirmative defenses of estoppel, waiver, laches, unclean hands, statute of limitations, and

damages were caused by third parties because defendants failed to reference supporting facts and thus

there was no notice concerning the bases of the defenses).

€V-90 (06/04) CIVIL MINUTES - GENERAL Page 13 of 19

Case 2:24-cv-09511-RGK-MAA Document137 Filed 09/16/25 Page 14of19 Page

ID #:11233

. NO IS6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et ai.

As for the ninth affirmative defense concemiung statute of limitations, Defendants admit that they

have no facts to support this affirmative defense as to the FTC’s claims limited to November 4, 2021

through present, but that there is a dispute regarding claims based on acts earlier than that time period.

Defendants argue that 15 U.S.C. § 57b(d) bars the FTC from bringing actions more than three years after

the rule was violated. However, Section 13(b) of the FTCA, which provides the FTC the authority fo

bring a suit to enjoin any person or entity violating any law enforced by the FTC, does not specify any

limitations period. See 15 U.S.C. § 53(b). Thus, Defendants have failed to identify any applicable

limitations period to support this affirmative defense. See F.T.C. v. Ivy Cap., Inc., 2011 WL 2470584, at

*2 (D. Ney. June 20, 2011) (“A defendant may not assert a statute of limitations defense agaist the

United States government unless the statute in question contains an express limitations period.”).

Accordingly, there is no genuime dispute of material fact that these affirmative defenses fail.

é. Entirely Unsupported

Finally, the FTC contends that the four remaining affirmative defenses are irrelevant and thus

fail. For their fifth affirmative defense, Defendants argue that the FTC is barred from recovering any

relief because Defendants had a reasonable basis for their actions and they acted in good faith. The FTC

argues this defense fails because good faith is not a defense to the relief sought. While the FTC is correct

that “good faith is not a defense to liability under the FTC Act,” this defense may be relevant in

determining the scope of injunctive relief “because permanent injunctions are only appropriate if ‘there

exists some cognizable danger of recurrent violation.” FTC v. LoanPointe, LLC, 2011 WL 4348304, at

*9 (D. Utah Sept. 16, 2011) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894,

97 L.Ed. 1303 (1953)): see also Fed. Trade Comm'n v. Vemma Nutrition Co., 2016 WI, 3548762, at *2

(D. Ariz. June 30, 2016) (“Because the FTC seeks a permanent injunction in this case, good faith is to

that extent a valid affirmative defense.”). Because the FTC seeks a permanent injunction in this case,

good faith is a valid affirmative defense as to the scope of injunctive relief.

For the remaining affirmative defenses, the FTC asserts that the fourteenth (failure to mitigate).

sixteenth (voluntary exposure/appreciation of risk), and seventeenth (comparative negligence) are not

appropriate because the defenses reference consumers impacted by the conduct at issue and the FTC

brings this suit in its own name. The Court agrees that these are not valid affirmative defenses given that

“relief under the FTC Act is equitable and dependent on the amount of gain by Defendants, not loss by

consumers.” Fed. Trade Comin'n v. Vemma Nutrition Co., 2016 3548762, at *2 (D. Ariz. Jine 30,

2016).

In sum, the Court GRANTS the FTC’s Motion for Summary Judgment of all affirmative

defenses except for the fifth affirmative defense as it relates to damages. The Court DENIES the FTC’s

Motion as to the fifth affirmative defense relating to damages.

6, Injunictive and Monetary Relief

€V-90 (06/04) CIVIL MINUTES - GENERAL Page 14 of 19

Case 2:24-cv-09511-RGK-MAA Document137 Filed 09/16/25 Page 15o0f19 Page

ID #:11234

. NO 586

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et al.

The FTC moves for summary judgment on two aspects of its requested relief. First, the FTC

asserts that Ferman is individually liable for mjunctive and monetary relief. Second, the FTC contends

that the requested scope of relief is accurate and should be ordered. The Court considers each argument

in turn.

a. Ferman’s Individual Liability

Individual liability for injunctive relief exists where “(1) the corporation committed

misrepresentations of a kind usually relied on by a reasonably prudent person and resulted in consumer

injury, and (2) individuals participated directly m the violations or had authority to control the entities.”

FIC v. Grant Connect, LLC, 763 F.3d 1094, 1101 (9th Cir. 2014) (citing Publ'g Clearing House, Inc..

104 F.3d at 1170-71).

For monetary relief, individual liability exists where the individual “had knowledge that the

corporation or one of its agents engaged im dishonest or fraudulent conduct, that the misrepresentations

were the type upon which a reasonable and prudent person would rely, and that consumer injury

resulted.” Jd. at 1101 (quoting Pub/’g Clearing House, Inc., 104 F 3d at 1171). To satisfy the knowledge

requirement, the FTC must establish that defendants “had actual knowledge of material

mmisrepresentations, [were] recklessly indifferent to the truth or falsity of a misrepresentation, or had an

awareness of a high probability of fraud along with an intentional avoidance of the truth.” Jd. at 1101-02

(citing FTC v. Am. Standard Credit Sys., Inc., 874 F.Supp. 1080, 1089 (C.D.Cal.1994). The FTC does

not need to show that a defendant intended to defraud consumers, but rather that “the individual’s

involvement in a fraudulent scheme alone is sufficient to establish the requisite knowledge for personal

restitutionary liability.” Jd. at 1102 (quoting FTC v. Affordable Media, 179 F.3d 1228, 1235 (9th

Cir.1999)).

Here, the FTC asserts that Ferman is personally liable for both injunctive and monetary relief.

The Court agrees. First, for injunctive relief liability, the record is clear that Seek made misleading

inisrepresentations that resulted in consumer injury. See supra Section TV.A.1. Additionally, the FTC

contends Ferman participated directly m the violations and had authority to control the entities, As the

Court mentioned above, the undisputed record shows that Ferman made some of the misrepresentations

that violated the FTCA. (See, e.g¢., FTC RSF § 168.) Additionally, as founder and CEO, Ferman has

controlled Seek’s business, evident in that he was the signatory for significant business documents,

including the corporate formation documents, bank accounts, and third-party contracts. Ferman also

‘served as the primary contact for Seek’s lead generator and payment processors, which relate to some of

the business practices at issue. Defendants do not dispute these facts.

Second, for monetary relief, the FTC asserts that Ferman had the requisite knowledge of

wrongdoing, citing to Ferman arranging the operation, organizing the entities, and directing activities.

Indeed, it is undisputed that as owner and CEO of Seek, Ferman personally approved and drafted some

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Case 2:24-cv-09511-RGK-MAA Document137 Filed 09/16/25 Page 16o0f19 Page

ID #:11235

. NO 586

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et al.

of Seek’s representations, including within telemarketing scripts. (See, e.g, FTC RSF 99 32. 51, 168.)

Moreover, Ferman was aware that Seek’s representations concerning “loans” could potentially be

“misleading,” and he had received and responded to consumer complaints regarding Seek’s business

practices. 7d. 99 34, 35,97.) Additionally, in 2022, the First National Bank of Omaha personally

addressed Ferman in its letter requesting Seek cease-and-desist its “credit card stacking scheme.” Ud. 4

114.) Again, Defendants do not dispute these facts, which all illustrate Ferman’s knowledge, or at least

reckless indifference to the truth, of the material misrepresentations Seek has made.

In their opposition, Defendants make the blanket claim that there is a genuine dispute of material

fact as to whether Ferman should be individually liable, but they fail to cite any support facts or case

law. Regardless, there is no genuine dispute in the record that Ferman had the requisite involvement,

control, and knowledge to be individually lable for injunctive and monetary relief for Seek’s violations

at issue. Thus, the Court concludes that it is proper to hold Ferman individually liable for Seek’s

wrongdoings, and GRANTS the FTC’s Motion.

a. Scope of Injunctive and Monetary Relief

Pursuant to Section 19(b) of the FTCA, the Court can grant monetary relief for violations of the

rules, including the TSR. See 15 U.S.C. § 57b(b); United States v. MvLife.com, Inc., 567 F. Supp. 3d

1152, 1170 (C.D. Cal. 2021). Additionally, Section 13(b) authorizes the Court to grant a permanent

injunction against violations of any provisions of law enforced by the FTC. See 15 U.S.C. § 53(b).

The FTC asserts that the Court should order injunctive and monetary relief and that the scope of

its requested relief is proper because of the seriousness of the present violations and Defendants’ history

of prior violations. In its opposition, Defendants argue that the FTC’s proposed judgment exceeds the

seriousness of the violations at issue and that there is a genuine dispute of material fact as to the total

monetary amount Seek received from its business operations.

As addressed above, the Court finds that genuine issues of material fact exist as to the

Defendants’ full liability for the claims at issue. While the Court grants the FTC’s Motion for Summary

Judgment of some claims, others remain disputed and cannot be decided at this stage of the proceedings.

Since there are open questions of liability in this action, the Court finds that genuine disputes of fact

remain as to the scope of relief Defendants are liable for. See Lambert Corp, v. LBJC Inc., 2014 WL

2737913, at *5 (C.D. Cal. June 16, 2014) (declining to address what remedies are available to plaintitf

because genuine issues of material fact existed as to claim liability); DuffBrown v. City and County of

San Francisco, 2013 WL 163530, at *7 (N.D.Cal. Jan.15, 2013) (“Because the Court has denied

summary judgment as to liability, it need not rule on damages at this time.”); JL Midwest Mihvaukee,

LLC yv. It's Just Lunch Int'l, LLC, 2022 WL 744055, at *4 (D. Nev. Mar. 11,2022) (‘Because genuine

disputes remain on some claims, I deny summary judgment on whether injunctive relief is

appropriate.”).

€V-90 (06/04) CIVIL MINUTES - GENERAL Page 16 of 19

Case 2:24-cv-09511-RGK-MAA Document137 Filed 09/16/25 Page17of19 Page

ID #:11236

. NO IS6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et ai.

Accordingly, the Court DENIES the FTC’s Motion for Summary Judgment of the scope of

injunctive and monetary relief.

B. Conclusion

For the foregoing reasons, the Court GRANTS in part the FTC’s Motion for Summary

Judgment. Specifically, the Court holds as follows:

1. The FTC’s Motion for Summary Judgment of violations of the FTCA and TSR as to

misrepresentations about relationships with lenders, line of credit capabilities, financing

terms, no fees until funding, and credit score impact is GRANTED. The FTC’s Motion for

Summary Judgment of violations of the FTCA and TSR as to all other grounds for

musrepresentation are DENIED.

2. The FTC’s Motion for Summary Judgment of FTCA violations as to Defendants’ billing

practices related to its early termination fees and charging for certain services not provided is

GRANTED. The FTC’s Motion for Summary Judgment of FTCA violations as to all other

billing practices are DENIED.

3. The FTC’s Motion for Summary Judgment of the CRFA violation is GRANTED.

4. The FTC’s Motion for Summary Judement that Seek acted as a common enterprise is

GRANTED.

5. The FTC’s Motion for Summary Judgment of the failure of all affirmative defenses except

for the fifth affirmative defense as it relates to damages is GRANTED. The FTC’s Motion

for Summary Judgment of the failure of the fifth affirmative defense is DENIED as it relates

to damages.

6. The FTC’s Motion for Summary Judgment that Ferman is individually liable for injunctive

and monetary relief for Seek’s wrongdoings is GRANTED.

7. The FTC’s Motion for Summary Judgment for the scope of injunctive and monetary relief is

DENIED.

The Court now proceeds to consider Ferman’s Motion for Partial Summary Judgment.

V. DEFENDANT FERMAN’S MOTION FOR PARTIAL SUMMARY JUDGMENT

A. Discussion

Ferman moves for partial summary judgment on essentially two issues: (1) whether the Court

must defer to the FTC’s request for relief in this case; and (2) the scope of injunctive relief.

First, Ferman asserts that the Court is not required to defer to the FTC on the scope of injunctive

relief, citing to the Supreme Court’s recent ruling in Loper Bright Enters. v. Raimondo, 603 U.S. 369,

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Case 2:24-cv-09511-RGK-MAA Document137 Filed 09/16/25 Page 18o0f19 Page

ID #:11237

. NO IS6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et ai.

396 (2024) for support. In its Opposition, the FTC states that Loper Bright Enters. is inapplicable give

that it is requesting that the Court issue an injunction with an appropriate remedy pursuant to Section

13(b) of the FTCA. Additionally, the FTC confirms that it is requesting the Court to issue an injunction

with an appropriate remedy under Section 13(b). Thus, there isno dispute that Section 13(b) “gives the

federal courts broad authority to fashion appropriate remedies for violations of the’ FTCA. F.2-C. v.

Pantron I Corp., 33 F.3d 1088, 1102 (9th Cir. 1994).

Second, Ferman asserts that if myunctive relief is ordered against him, the scope should be

narrower than what the FTC has requested. As explained above, genuine issues of material fact exist as

to Defendants’ full labilities for the claims asserted in this action. As a result, there are genuine disputes

as to the appropriate scope of relief.

B. Conclusion

Accordingly, the Court DENIES Ferman’s Motion for Partial Summary Judgment.

VI. CONCLUSION

For the foregoing reasons, the Court GRANTS in part the FTC’s Motion for Summary

Judgment, and DENTES Ferman’s Motion for Partial Summary Judgment.

Specifically, the Court holds as follows:

1. The FTC’s Motion for Summary Judgment of violations of the FTCA and TSR as to

misrepresentations about relationships with lenders, line of credit capabilities, financing

terms, no fees until funding, and credit score impact is GRANTED. The FTC’s Motion for

Summary Judgment of violations of the FTCA and TSR as to all other grounds for

musrepresentation are DENIED.

2. The FTC’s Motion for Summary Judgment of FTCA violations as to Defendants’ billing

practices related to its early termination fees and charging for certain services not provided is

GRANTED. The FTC’s Motion for Summary Judgment of FTCA violations as to all other

billing practices are DENIED.

3. The FTC’s Motion for Summary Judgment of the CRFA violation is GRANTED.

4. The FTC’s Motion for Summary Judgment that Seek acted as a common enterprise is

GRANTED.

5. The FIC’s Motion for Summary Judgment of the failure of all affirmative defenses except

for the fifth affirmative defense as it relates to damages is GRANTED. The FTC’s Motion

for Summary Judgment of the failure of the fifth affirmative defense is DENIED as it relates

to damages.

€V-90 (06/04) CIVIL MINUTES - GENERAL Page 18 of 19

Case 2:24-cv-09511-RGK-MAA Document137 Filed 09/16/25 Page 19o0f19 Page

ID #:11238

NO IS6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:24-cv-09511-RGK Date September 16, 2025

Title Federal Trade Commission v. Seek Capital, LLC et ai.

6. The FTC’s Motion for Summary Judgment that Ferman is individually liable for injunctive

and monetary relief for Seek’s wrongdoings is GRANTED.

7. The FTC’s Motion for Summary Judgment for the scope of injunctive and monetary relief is

DENIED.

8. Ferman’s Motion for Partial Summary Judgment is DENIED.

IT IS SO ORDERED.

Initials of Preparer JRE/gz

CV-90 (06/04) CIVIL MINUTES - GENERAL Page 19 of 19

ATTACHMENT B

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content is from the eCFR and is authoritative but unofficial.

Title 16 —Commercial Practices

Chapter I —Federal Trade Commission

Subchapter C —Regulations Under Specific Acts of Congress

Part 310 Telemarketing Sales Rule

§ 310.1 Scope of regulations in this part.

§ 310.2 Definitions.

§ 310.3 Deceptive telemarketing acts or practices.

§ 310.4 Abusive telemarketing acts or practices.

Recordkeeping requirements.

§ 310.6 Exemptions.

§ 310.7 Actions by states and private persons.

§ 310.8 Fee for access to the National Do Not Call Registry.

§ 310.9 Severability.

PART 310—TELEMARKETING SALES RULE

Authority: 15 U.S.C. 6101-6108.

Source: 75 FR 48516, Aug. 10, 2010, unless otherwise noted.

§ 310.1 Scope of regulations in this part.

This part implements the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C, 6101-6108, as

amended.

§ 310.2 Definitions.

(a) Acquirer means a business organization, financial institution, or an agent of a business organization or

financial institution that has authority from an organization that operates or licenses a credit card system

to authorize merchants to accept, transmit, or process payment by credit card through the credit card

system for money, goods or services, or anything else of value.

(b) Attorney General means the chief legal officer of a state.

(c) Billing information means any data that enables any person to access a customer's or donor's account,

such as a credit card, checking, savings, share or similar account, utility bill, mortgage loan account, or

debit card.

CER .3(c) (enhanced dispvlav) □□□□

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(d) Caller identification service means a service that allows a telephone subscriber to have the telephone

number, and, where available, name of the calling party transmitted contemporaneously with the

telephone call, and displayed on a device in or connected to the subscriber's telephone.

(e) Cardholder means a person to whom a credit card is issued or who is authorized to use a credit card on

behalf of or in addition to the person to whom the credit card is issued.

(f) Cash-to-cash money transfer means the electronic (as defined in section 106(2) of the Electronic

Signatures in Global and National Commerce Act (15 U.S.C. 7006(2)) transfer of the value of cash

received from one person to another person in a different location that is sent by a money transfer

provider and received in the form of cash. For purposes of this definition, money transfer provider means

any person or financial institution that provides cash-to-cash money transfers for a person in the normal

course of its business, whether or not the person holds an account with such person or financial

institution. The term cash-to-cash money transfer includes a remittance transfer, as defined in section

919(g)(2) of the Electronic Fund Transfer Act (“EFTA’), 15 U.S.C. 1693a, that is a cash-to-cash transaction;

however it does not include any transaction that is:

(1) An electronic fund transfer as defined in section 903 of the EFTA;

(2) Covered by Regulation E, 12 CFR 1005.20, pertaining to gift cards; or

(3) Subject to the Truth in Lending Act, 15 U.S.C. 1601 et seq.

(g) Cash reload mechanism is a device, authorization code, personal identification number, or other security

measure that makes it possible for a person to convert cash into an electronic (as defined in section

106(2) of the Electronic Signatures in Global and National Commerce Act (15 U.S.C. 7006(2)) form that

can be used to add funds to a general-use prepaid card, as defined in Regulation E, 12 CFR 1005.2, or an

account with a payment intermediary. For purposes of this definition, a cash reload mechanism is not

itself a general-use prepaid debit card or a swipe reload process or similar method in which funds are

added directly onto a person's own general-use prepaid card or account with a payment intermediary.

(h) Charitable contribution means any donation or gift of money or any other thing of value.

(i) Commission means the Federal Trade Commission.

(j) Credit means the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer

its payment.

({k) Credit card means any card, plate, coupon book, or other credit device existing for the purpose of

obtaining money, property, labor, or services on credit.

(1) Credit card sales draft means any record or evidence of a credit card transaction.

(m) Credit card system means any method or procedure used to process credit card transactions involving

credit cards issued or licensed by the operator of that system.

(n) Customer means any person who is or may be required to pay for goods or services offered through

telemarketing.

(0) Debt relief service means any program or service represented, directly or by implication, to renegotiate,

settle, or in any way alter the terms of payment or other terms of the debt between a person and one or

more unsecured creditors or debt collectors, including, but not limited to, a reduction in the balance,

interest rate, or fees owed by a person to an unsecured creditor or debt collector.

(p) Donor means any person solicited to make a charitable contribution.

CER 310.3(n) (enhanced disnlav) nace 7 of 71

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(q) Established business relationship means a relationship between a seller and a person based on:

(1) The person's purchase, rental, or lease of the seller's goods or services or a financial transaction

between the person and seller, within the 540 days immediately preceding the date of a

telemarketing call; or

(2) The person's inquiry or application regarding a good or service offered by the seller, within the 90

days immediately preceding the date of a telemarketing call.

(r) Free-to-pay conversion means, in an offer or agreement to sell or provide any goods or services, a

provision under which a customer receives a product or service for free for an initial period and will incur

an obligation to pay for the product or service if he or she does not take affirmative action to cancel

before the end of that period.

(s) Investment opportunity means anything, tangible or intangible, that is offered, offered for sale, sold, or

traded based wholly or in part on representations, either express or implied, about past, present, or future

income, profit, or appreciation.

(t) Material means likely to affect a person's choice of, or conduct regarding, goods or services or a

charitable contribution.

(u) Merchant means a person who is authorized under a written contract with an acquirer to honor or accept

credit cards, or to transmit or process for payment credit card payments, for the purchase of goods or

services or a charitable contribution.

(v) Merchant agreement means a written contract between a merchant and an acquirer to honor or accept

credit cards, or to transmit or process for payment credit card payments, for the purchase of goods or

services or a charitable contribution.

(w) Negative option feature means, in an offer or agreement to sell or provide any goods or services, a

provision under which the customer's silence or failure to take an affirmative action to reject goods or

services or to cancel the agreement is interpreted by the seller as acceptance of the offer.

(x) 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.

(y) Person means any individual, group, unincorporated association, limited or general partnership,

corporation, or other business entity.

(z) Preacquired account information means any information that enables a seller or telemarketer to cause a

charge to be placed against a customer's or donor's account without obtaining the account number

directly from the customer or donor during the telemarketing transaction pursuant to which the account

will be charged.

(aa) Previous donor means any person who has made a charitable contribution to a particular charitable

organization within the 2-year period immediately preceding the date of the telemarketing call soliciting

on behalf of that charitable organization.

(bb) Prize means anything offered, or purportedly offered, and given, or purportedly given, to a person by

chance. For purposes of this definition, chance exists if a person is guaranteed to receive an item and, at

the time of the offer or purported offer, the telemarketer does not identify the specific item that the person

will receive.

(cc) Prize promotion means:

CFR 310 2(cc) (enhanced display) nave 2o0f 71

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(1) Asweepstakes or other game of chance; or

(2) An oral or written express or implied representation that a person has won, has been selected to

receive, or may be eligible to receive a prize or purported prize.

(dd) Remotely created payment order means any payment instruction or order drawn on a person's account

that is created by the payee or the payee’s agent and deposited into or cleared through the check clearing

system. The term includes, without limitation, a “remotely created check,” as defined in Regulation CC,

Availability of Funds and Collection of Checks, 12 CFR 229.2(fff), but does not include a payment order

cleared through an Automated Clearinghouse (ACH) Network or subject to the Truth in Lending Act, 15

(ee) Seller means any person who, in connection with a telemarketing transaction, provides, offers to provide,

or arranges for others to provide goods or services to the customer in exchange for consideration.

(ff) State means any state of the United States, the District of Columbia, Puerto Rico, the Northern Mariana

Islands, and any territory or possession of the United States.

(gg) Technical support service means any plan, program, software, or service that is marketed to repair,

maintain, or improve the performance or security of any device on which code can be downloaded,

installed, run, or otherwise used, such as a computer, smartphone, tablet, or smart home product,

including any software or application run on such device. Technical support service does not include any

plan, program, software, or service in which the person providing the repair, maintenance, or improvement

obtains physical possession of the device being repaired.

(hh) Telemarketer means any person who, in connection with telemarketing, initiates or receives telephone

calls to or from a customer or donor.

(ii) Telemarketing means a plan, program, or campaign which is conducted to induce the purchase of goods

or services or a charitable contribution, by use of one or more telephones and which involves more than

one interstate telephone call. The term does not include the solicitation of sales through the mailing of a

catalog which: contains a written description or illustration of the goods or services offered for sale;

includes the business address of the seller; includes multiple pages of written material or illustrations;

and has been issued not less frequently than once a year, when the person making the solicitation does

not solicit customers by telephone but only receives calls initiated by customers in response to the

catalog and during those calls takes orders only without further solicitation. For purposes of the previous

sentence, the term “further solicitation” does not include providing the customer with information about,

or attempting to sell, any other item included in the same catalog which prompted the customer's call or

in a substantially similar catalog.

(jj) Upselling means soliciting the purchase of goods or services following an initial transaction during a

single telephone call. The upsell is a separate telemarketing transaction, not a continuation of the initial

transaction. An “external upsell” is a solicitation made by or on behalf of a seller different from the seller

in the initial transaction, regardless of whether the initial transaction and the subsequent solicitation are

made by the same telemarketer. An “internal upsell” is a solicitation made by or on behalf of the same

seller as in the initial transaction, regardless of whether the initial transaction and subsequent solicitation

are made by the same telemarketer.

FR 48516, Aug. 10, 2010, as amended at 80 FR 77557, Dec. 14, 2015; 89 FR 26783, Apr. 16, 2024; 89 FR 99075, Dec. 10, 2024]

CFR 310.2(ii) (enhanced disnlav) pace 4of 71

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§ 310.3 Deceptive telemarketing acts or practices.

(a) Prohibited deceptive telemarketing acts or practices. It is a deceptive telemarketing act or practice and a

violation of this part for any seller or telemarketer to engage in the following conduct:

(1) Before a customer consents to pay!!! for goods or services offered, failing to disclose truthfully, in a

clear and conspicuous manner, the following material information:

(i) The total costs to purchase, receive, or use, and the quantity of, any goods or services that are

the subject of the sales offer:2]

(ii) All material restrictions, limitations, or conditions to purchase, receive, or use the goods or

services that are the subject of the sales offer;

(ili) If the seller has a policy of not making refunds, cancellations, exchanges, or repurchases, a

statement informing the customer that this is the seller's policy; or, if the seller or telemarketer

makes a representation about a refund, cancellation, exchange, or repurchase policy, a

statement of all material terms and conditions of such policy;

(iv) In any prize promotion, the odds of being able to receive the prize, and, if the odds are not

calculable in advance, the factors used in calculating the odds; that no purchase or payment is

required to win a prize or to participate in a prize promotion and that any purchase or payment

will not increase the person's chances of winning; and the no-purchase/no-payment method of

participating in the prize promotion with either instructions on how to participate or an address

or local or toll-free telephone number to which customers may write or call for information on

how to participate;

(v) All material costs or conditions to receive or redeem a prize that is the subject of the prize

promotion;

(vi) In the sale of any goods or services represented to protect, insure, or otherwise limit a

customer's liability in the event of unauthorized use of the customer's credit card, the limits on

a cardholder's liability for unauthorized use of a credit card pursuant to 15 U.S.C. 1643;

(vii) If the offer includes a negative option feature, all material terms and conditions of the negative

option feature, including, but not limited to, the fact that the customer's account will be charged

unless the customer takes an affirmative action to avoid the charge(s), the date(s) the

charge(s) will be submitted for payment, and the specific steps the customer must take to

avoid the charge(s); and

(viii) In the sale of any debt relief service:

[1] When a seller or telemarketer uses, or directs a customer to use, a courier to transport payment, the seller or

telemarketer must make the disclosures required by § 310.3(a)(1) before sending a courier to pick up payment

or authorization for payment, or directing a customer to have a courier pick up payment or authorization for

payment. In the case of debt relief services, the seller or telemarketer must make the disclosures required by §

310.3(a)(1) before the consumer enrolls in an offered program.

For offers of consumer credit products subject to the Truth in Lending Act, 15 U.S.C. 1601 et seq., and

Regulation Z, 12 CFR 226, compliance with the disclosure requirements under the Truth in Lending Act and

Regulation Z shall constitute compliance with § 310.3(a)(1)(i) of this part.

CER 310 3(a\(1\wiii) (enhanced display) nage Sof 71

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(A) the amount of time necessary to achieve the represented results, and to the extent that the

service may include a settlement offer to any of the customer's creditors or debt

collectors, the time by which the debt relief service provider will make a bona fide

settlement offer to each of them;

(B) to the extent that the service may include a settlement offer to any of the customer's

creditors or debt collectors, the amount of money or the percentage of each outstanding

debt that the customer must accumulate before the debt relief service provider will make

a bona fide settlement offer to each of them;

(C) to the extent that any aspect of the debt relief service relies upon or results in the

customer's failure to make timely payments to creditors or debt collectors, that the use of

the debt relief service will likely adversely affect the customer's creditworthiness, may

result in the customer being subject to collections or sued by creditors or debt collectors,

and may increase the amount of money the customer owes due to the accrual of fees and

interest; and

(D) to the extent that the debt relief service requests or requires the customer to place funds

in an account at an insured financial institution, that the customer owns the funds held in

the account, the customer may withdraw from the debt relief service at any time without

penalty, and, if the customer withdraws, the customer must receive all funds in the

account, other than funds earned by the debt relief service in compliance with §

310.4(a)(5)(i)(A) through (C).

(2) Misrepresenting, directly or by implication, in the sale of goods or services any of the following

material information:

(i) The total costs to purchase, receive, or use, and the quantity of, any goods or services that are

the subject of a sales offer;

(ii) Any material restriction, limitation, or condition to purchase, receive, or use goods or services

that are the subject of a sales offer;

(iii) Any material aspect of the performance, efficacy, nature, or central characteristics of goods or

services that are the subject of a sales offer;

(iv) Any material aspect of the nature or terms of the seller's refund, cancellation, exchange, or

repurchase policies;

(v) Any material aspect of a prize promotion including, but not limited to, the odds of being able to

receive a prize, the nature or value of a prize, or that a purchase or payment is required to win a

prize or to participate in a prize promotion;

(vi) Any material aspect of an investment opportunity including, but not limited to, risk, liquidity,

earnings potential, or profitability;

(vii) A seller's or telemarketer's affiliation with, or endorsement or sponsorship by, any person or

government entity;

(viii) That any customer needs offered goods or services to provide protections a customer already

has pursuant to 15 U.S.C. 1643;

CER 310 3(a\(?)(wiii) (enhanced disnlav) pave Gof 71

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(ix) Any material aspect of a negative option feature including, but not limited to, the fact that the

customer's account will be charged unless the customer takes an affirmative action to avoid

the charge(s), the date(s) the charge(s) will be submitted for payment, and the specific steps

the customer must take to avoid the charge(s); or

(x) Any material aspect of any debt relief service, including, but not limited to, the amount of money

or the percentage of the debt amount that a customer may save by using such service; the

amount of time necessary to achieve the represented results; the amount of money or the

percentage of each outstanding debt that the customer must accumulate before the provider of

the debt relief service will initiate attempts with the customer's creditors or debt collectors or

make a bona fide offer to negotiate, settle, or modify the terms of the customer's debt; the

effect of the service on a customer's creditworthiness; the effect of the service on collection

efforts of the customer's creditors or debt collectors; the percentage or number of customers

who attain the represented results; and whether a debt relief service is offered or provided by a

non-profit entity.

(3) Causing billing information to be submitted for payment, or collecting or attempting to collect

payment for goods or services or a charitable contribution, directly or indirectly, without the

customer's or donor's express verifiable authorization, except when the method of payment used is a

credit card subject to protections of the Truth in Lending Act and Regulation a debit card

subject to the protections of the Electronic Fund Transfer Act and Regulation E.!4! Such authorization

shall be deemed verifiable if any of the following means is employed:

(i) Express written authorization by the customer or donor, which includes the customer's or

donor's signature?*!

(ii) Express oral authorization which is audio-recorded and made available upon request to the

customer or donor, and the customer's or donor's bank or other billing entity, and which

evidences clearly both the customer's or donor's authorization of payment for the goods or

services or charitable contribution that are the subject of the telemarketing transaction and the

customer's or donor's receipt of all of the following information:

(A) An accurate description, clearly and conspicuously stated, of the goods or services or

charitable contribution for which payment authorization is sought;

(B) The number of debits, charges, or payments (if more than one);

(C) The date(s) the debit(s), charge(s), or payment(s) will be submitted for payment;

(D) The amount(s) of the debit(s), charge(s), or payment(s);

(E) The customer's or donor's name;

[41 Electronic Fund Transfer Act, 15 U.S.C. 1693 et seg., and Regulation E, 12 CFR part 205.

Truth in Lending Act, 15 U.S.C. 1601 et seq,, and Regulation Z, 12 CER part 226.

[5] For purposes of this part, the term “signature” shall include an electronic or digital form of signature, to the

extent that such form of signature is recognized as a valid signature under applicable federal law or state

contract law.

CFR 310 3(a(3)(ii)(E) (enhanced display) pave 7 of 71

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(F) The customer's or donor's billing information, identified with sufficient specificity such that

the customer or donor understands what account will be used to collect payment for the

goods or services or charitable contribution that are the subject of the telemarketing

transaction;

(G) Atelephone number for customer or donor inquiry that is answered during normal

business hours; and

(H) The date of the customer's or donor's oral authorization; or

(iii) Written confirmation of the transaction, identified in a clear and conspicuous manner as such

on the outside of the envelope, sent to the customer or donor via first class mail prior to the

submission for payment of the customer's or donor's billing information, and that includes all of

the information contained in §§ 310.3(a)(3)(ii)(A)-(G) and a clear and conspicuous statement

of the procedures by which the customer or donor can obtain a refund from the seller or

telemarketer or charitable organization in the event the confirmation is inaccurate; provided,

however, that this means of authorization shall not be deemed verifiable in instances in which

goods or services are offered in a transaction involving a free-to-pay conversion and

preacquired account information.

(4) Making a false or misleading statement to induce any person to pay for goods or services or to

induce a charitable contribution.

(b) Assisting and facilitating. It is a deceptive telemarketing act or practice and a violation of this part for a

person to provide substantial assistance or support to any seller or telemarketer when that person knows

or consciously avoids knowing that the seller or telemarketer is engaged in any act or practice that

violates §§ 310.3(a), (c) or (d), or § 310.4 of this part.

(c) Credit card laundering. Except as expressly permitted by the applicable credit card system, it is a deceptive

telemarketing act or practice and a violation of this part for:

(1) Amerchant to present to or deposit into, or cause another to present to or deposit into, the credit

card system for payment, a credit card sales draft generated by a telemarketing transaction that is

not the result of a telemarketing credit card transaction between the cardholder and the merchant;

(2) Any person to employ, solicit, or otherwise cause a merchant, or an employee, representative, or

agent of the merchant, to present to or deposit into the credit card system for payment, a credit card

sales draft generated by a telemarketing transaction that is not the result of a telemarketing credit

card transaction between the cardholder and the merchant: or

(3) Any person to obtain access to the credit card system through the use of a business relationship or

an affiliation with a merchant, when such access is not authorized by the merchant agreement or the

applicable credit card system.

(d) Prohibited deceptive acts or practices in the solicitation of charitable contributions. \t is a fraudulent

charitable solicitation, a deceptive telemarketing act or practice, and a violation of this part for any

telemarketer soliciting charitable contributions to misrepresent, directly or by implication, any of the

following material information:

(1) The nature, purpose, or mission of any entity on behalf of which a charitable contribution is being

requested;

(2) That any charitable contribution is tax deductible in whole or in part;

CER 310 3(d\(2) (enhanced disnlav) pave 8 of 71

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(3) The purpose for which any charitable contribution will be used;

(4) The percentage or amount of any charitable contribution that will go to a charitable organization or

to any particular charitable program;

(5) Any material aspect of a prize promotion including, but not limited to: the odds of being able to

receive a prize; the nature or value of a prize; or that a charitable contribution is required to win a

prize or to participate in a prize promotion; or

(6) Acharitable organization's or telemarketer's affiliation with, or endorsement or sponsorship by, any

person or government entity.

FR 48516, Aug. 10, 2010, as amended at 80 FR 77558, Dec. 14, 2015; 89 FR 26784, 26785, Apr. 16, 2024]

§ 310.4 Abusive telemarketing acts or practices.

(a) Abusive conduct generally. \t is an abusive telemarketing act or practice and a violation of this part for any

seller or telemarketer to engage in the following conduct:

(1) Threats, intimidation, or the use of profane or obscene language;

(2) Requesting or receiving payment of any fee or consideration for goods or services represented to

remove derogatory information from, or improve, a person's credit history, credit record, or credit

rating until:

(i) The time frame in which the seller has represented all of the goods or services will be provided

to that person has expired; and

(ii) The seller has provided the person with documentation in the form of a consumer report from a

consumer reporting agency demonstrating that the promised results have been achieved, such

report having been issued more than six months after the results were achieved. Nothing in this

part should be construed to affect the requirement in the Fair Credit Reporting Act, 15 U.S.C.

1681, that a consumer report may only be obtained for a specified permissible purpose;

(3) Requesting or receiving payment of any fee or consideration from a person for goods or services

represented to recover or otherwise assist in the return of money or any other item of value paid for

by, or promised to, that person in a previous transaction, until seven (7) business days after such

money or other item is delivered to that person. This provision shall not apply to goods or services

provided to a person by a licensed attorney;

(4) Requesting or receiving payment of any fee or consideration in advance of obtaining a loan or other

extension of credit when the seller or telemarketer has guaranteed or represented a high likelihood

of success in obtaining or arranging a loan or other extension of credit for a person;

(5)

(i) Requesting or receiving payment of any fee or consideration for any debt relief service until and

unless:

(A) The seller or telemarketer has renegotiated, settled, reduced, or otherwise altered the

terms of at least one debt pursuant to a settlement agreement, debt management plan, or

other such valid contractual agreement executed by the customer;

CER (enhanced disnlav) pave 9 of 71

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(B) The customer has made at least one payment pursuant to that settlement agreement, debt

management plan, or other valid contractual agreement between the customer and the

creditor or debt collector; and

(C) To the extent that debts enrolled in a service are renegotiated, settled, reduced, or

otherwise altered individually, the fee or consideration either:

(1) Bears the same proportional relationship to the total fee for renegotiating, settling,

reducing, or altering the terms of the entire debt balance as the individual debt

amount bears to the entire debt amount. The individual debt amount and the entire

debt amount are those owed at the time the debt was enrolled in the service; or

(2) Is a percentage of the amount saved as a result of the renegotiation, settlement,

reduction, or alteration. The percentage charged cannot change from one individual

debt to another. The amount saved is the difference between the amount owed at the

time the debt was enrolled in the service and the amount actually paid to satisfy the

debt.

(ii) Nothing in § 310.4(a)(5)(i) prohibits requesting or requiring the customer to place funds in an

account to be used for the debt relief provider's fees and for payments to creditors or debt

collectors in connection with the renegotiation, settlement, reduction, or other alteration of the

terms of payment or other terms of a debt, provided that:

(A) The funds are held in an account at an insured financial institution;

(B) The customer owns the funds held in the account and is paid accrued interest on the

account, if any;

(C) The entity administering the account is not owned or controlled by, or in any way affiliated

with, the debt relief service;

(D) The entity administering the account does not give or accept any money or other

compensation in exchange for referrals of business involving the debt relief service; and

(E) The customer may withdraw from the debt relief service at any time without penalty, and

must receive all funds in the account, other than funds earned by the debt relief service in

compliance with § 310.4(a)(5)(i)(A) through (C), within seven (7) business days of the

customer's request.

(6) Disclosing or receiving, for consideration, unencrypted consumer account numbers for use in

telemarketing; provided, however, that this paragraph shall not apply to the disclosure or receipt of a

customer's or donor's billing information to process a payment for goods or services or a charitable

contribution pursuant to a transaction;

(7) Causing billing information to be submitted for payment, directly or indirectly, without the express

informed consent of the customer or donor. In any telemarketing transaction, the seller or

telemarketer must obtain the express informed consent of the customer or donor to be charged for

the goods or services or charitable contribution and to be charged using the identified account. In

any telemarketing transaction involving preacquired account information, the requirements in

paragraphs (a)(7)(i) through (ii) of this section must be met to evidence express informed consent.

(i) In any telemarketing transaction involving preacquired account information and a free-to-pay

conversion feature, the seller or telemarketer must:

CER (enhanced disnlav) nace 10 of 71

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(A) Obtain from the customer, at a minimum, the last four (4) digits of the account number to

be charged;

(B) Obtain from the customer his or her express agreement to be charged for the goods or

services and to be charged using the account number pursuant to paragraph (a)(7)(i)(A)

of this section; and,

(C) Make and maintain an audio recording of the entire telemarketing transaction.

(ii) In any other telemarketing transaction involving preacquired account information not described

in paragraph (a)(7)(i) of this section, the seller or telemarketer must:

(A) At aminimum, identify the account to be charged with sufficient specificity for the

customer or donor to understand what account will be charged; and

(B) Obtain from the customer or donor his or her express agreement to be charged for the

goods or services and to be charged using the account number identified pursuant to

paragraph (a)(7)(ii)(A) of this section;

(8) Failing to transmit or cause to be transmitted the telephone number, and, when made available by the

telemarketer's carrier, the name of the telemarketer, to any caller identification service in use by a

recipient of a telemarketing call; provided that it shall not be a violation to substitute (for the name

and phone number used in, or billed for, making the call) the name of the seller or charitable

organization on behalf of which a telemarketing call is placed, and the seller's or charitable

organization's customer or donor service telephone number, which is answered during regular

business hours;

(9) Creating or causing to be created, directly or indirectly, a remotely created payment order as payment

for goods or services offered or sold through telemarketing or as a charitable contribution solicited

or sought through telemarketing; or

(10) Accepting from a customer or donor, directly or indirectly, a cash-to-cash money transfer or cash

reload mechanism as payment for goods or services offered or sold through telemarketing or as a

charitable contribution solicited or sought through telemarketing.

(b) Pattern of calls.

(1) Itis an abusive telemarketing act or practice and a violation of this part for a telemarketer to engage

in, or for a seller to cause a telemarketer to engage in, the following conduct:

(i) Causing any telephone to ring, or engaging any person in telephone conversation, repeatedly or

continuously with intent to annoy, abuse, or harass any person at the called number;

(ii) Denying or interfering in any way, directly or indirectly, with a person's right to be placed on any

registry of names and/or telephone numbers of persons who do not wish to receive outbound

telephone calls established to comply with paragraph (b)(1)(iii)(A) of this section, including, but

not limited to, harassing any person who makes such a request; hanging up on that person;

failing to honor the request; requiring the person to listen to a sales pitch before accepting the

request; assessing a charge or fee for honoring the request; requiring a person to calla

different number to submit the request; and requiring the person to identify the seller making

the call or on whose behalf the call is made;

(iii) Initiating any outbound telephone call to a person when:

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(A) That person previously has stated that he or she does not wish to receive an outbound

telephone call made by or on behalf of the seller whose goods or services are being

offered or made on behalf of the charitable organization for which a charitable

contribution is being solicited; or

(B) That person's telephone number is on the “do-not-call” registry, maintained by the

Commission, of persons who do not wish to receive outbound telephone calls to induce

the purchase of goods or services unless the seller or telemarketer:

(1) Can demonstrate that the seller has obtained the express agreement, in writing, of

such person to place calls to that person. Such written agreement shall clearly

evidence such person's authorization that calls made by or on behalf of a specific

party may be placed to that person, and shall include the telephone number to which

the calls may be placed and the signature!!! of that person; or

(2) Can demonstrate that the seller has an established business relationship with such

person, and that person has not stated that he or she does not wish to receive

outbound telephone calls under paragraph (b)(1)(iii)(A) of this section; or

(iv) Abandoning any outbound telephone call. An outbound telephone call is “abandoned” under this

section if a person answers it and the telemarketer does not connect the call to a sales

representative within two (2) seconds of the person's completed greeting.

(v) Initiating any outbound telephone call that delivers a prerecorded message, other than a

prerecorded message permitted for compliance with the call abandonment safe harbor in §

310.4(b)(4)(i), unless:

(A) In any such call to induce the purchase of any good or service, the seller has obtained

from the recipient of the call an express agreement, in writing, that:

(i) The seller obtained only after a clear and conspicuous disclosure that the purpose of the

agreement is to authorize the seller to place prerecorded calls to such person;

(ii) The seller obtained without requiring, directly or indirectly, that the agreement be executed as a

condition of purchasing any good or service;

(iii) Evidences the willingness of the recipient of the call to receive calls that deliver prerecorded

messages by or on behalf of a specific seller; and

(iv) Includes such person's telephone number and signature;! and

[1] For purposes of this part, the term “signature” shall include an electronic or digital form of signature, to the

extent that such form of signature is recognized as a valid signature under applicable federal law or state

contract law.

[2] For purposes of this part, the term “signature” shall include an electronic or digital form of signature, to the

extent that such form of signature is recognized as a valid signature under applicable federal law or state

contract law.

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(B) In any such call to induce the purchase of any good or service, or to induce a charitable

contribution from a member of, or previous donor to, a non-profit charitable organization

on whose behalf the call is made, the seller or telemarketer:

(i) Allows the telephone to ring for at least fifteen (15) seconds or four (4) rings before

disconnecting an unanswered call; and

(ii) Within two (2) seconds after the completed greeting of the person called, plays a prerecorded

message that promptly provides the disclosures required by § 310.4(d) or (e), followed

immediately by a disclosure of one or both of the following:

(A) Inthe case of a call that could be answered in person by a consumer, that the person

called can use an automated interactive voice and/or keypress-activated opt-out

mechanism to assert a Do Not Call request pursuant to § 310.4(b)(1)(iii)(A) at any time

during the message. The mechanism must:

(1) Automatically add the number called to the seller's entity-specific Do Not Call list;

(2) Once invoked, immediately disconnect the call; and

(3) Be available for use at any time during the message; and

(B) Inthe case of a call that could be answered by an answering machine or voicemail service,

that the person called can use a toll-free telephone number to assert a Do Not Call request

pursuant to § 310.4(b)(1)(iii)(A). The number provided must connect directly to an

automated interactive voice or keypress-activated opt-out mechanism that:

(1) Automatically adds the number called to the seller's entity-specific Do Not Call list;

(2) Immediately thereafter disconnects the call; and

(3) Is accessible at any time throughout the duration of the telemarketing campaign; and

(iii) Complies with all other requirements of this part and other applicable federal and state laws.

(C) Any call that complies with all applicable requirements of this paragraph (v) shall not be

deemed to violate § 310.4(b)(1)(iv) of this part.

(D) This paragraph (v) shall not apply to any outbound telephone call that delivers a

prerecorded healthcare message made by, or on behalf of, a covered entity or its business

associate, as those terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103. P>(2) It

is an abusive telemarketing act or practice and a violation of this part for any person to

sell, rent, lease, purchase, or use any list established to comply with § 310.4(b)(1)(iii)(A) or

§ 310.5, or maintained by the Commission pursuant to § 310.4(b)(1)(iii)(B), for any

purpose except compliance with the provisions of this part or otherwise to prevent

telephone calls to telephone numbers on such lists.

(3) Aseller or telemarketer will not be liable for violating § 310.4(b)(1)(ii) and (iii) if it can demonstrate

that, as part of the seller's or telemarketer's routine business practice:

(i) It has established and implemented written procedures to comply with § 310.4(b)(1)(ii) and (iii);

(ii) It has trained its personnel, and any entity assisting in its compliance, in the procedures

established pursuant to § 310.4(b)(3)(i);

CER (enhanced disnlav) nave 13 of 71

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(ili) The seller, or a telemarketer or another person acting on behalf of the seller or charitable

organization, has maintained and recorded a list of telephone numbers the seller or charitable

organization may not contact, in compliance with § 310.4(b)(1)(iii)(A);

(iv) The seller or a telemarketer uses a process to prevent telemarketing to any telephone number

on any list established pursuant to § 310.4(b)(3)(iii) or 310.4(b)(1)(iii)(B), employing a version

of the “do-not-call” registry obtained from the Commission no more than thirty-one (31) days

prior to the date any call is made, and maintains records documenting this process;

(v) The seller or a telemarketer or another person acting on behalf of the seller or charitable

organization, monitors and enforces compliance with the procedures established pursuant to §

310.4(b)(3)(i); and

(vi) Any subsequent call otherwise violating paragraph (b)(1)(ii) or (iii) of this section is the result of

error and not of failure to obtain any information necessary to comply with a request pursuant

to paragraph (b)(1)(iii)(A) of this section not to receive further calls by or on behalf of a seller or

charitable organization.

(4) Aseller or telemarketer will not be liable for violating § 310.4(b)(1)(iv) if:

(i) The seller or telemarketer employs technology that ensures abandonment of no more than

three (3) percent of all calls answered by a person, measured over the duration of a single

calling campaign, if less than 30 days, or separately over each successive 30-day period or

portion thereof that the campaign continues.

(ii) The seller or telemarketer, for each telemarketing call placed, allows the telephone to ring for at

least fifteen (15) seconds or four (4) rings before disconnecting an unanswered call;

(ili) Whenever a sales representative is not available to speak with the person answering the call

within two (2) seconds after the person's completed greeting, the seller or telemarketer

promptly plays a recorded message that states the name and telephone number of the seller

on whose behalf the call was placed!!! : and

(iv) The seller or telemarketer, in accordance with § 310.5(b)-(d), retains records establishing

compliance with § 310.4(b)(4)(i)-(iii).

(c) Calling time restrictions. Without the prior consent of a person, it is an abusive telemarketing act or

practice and a violation of this part for a telemarketer to engage in outbound telephone calls to a person's

residence at any time other than between 8:00 a.m. and 9:00 p.m. local time at the called person's

location.

(d) Required oral disclosures in the sale of goods or services. It is an abusive telemarketing act or practice and

a violation of this part for a telemarketer in an outbound telephone call or internal or external upsell to

induce the purchase of goods or services to fail to disclose truthfully, promptly, and in a clear and

conspicuous manner to the person receiving the call, the following information:

(1) The identity of the seller;

(2) That the purpose of the call is to sell goods or services;

[31 This provision does not affect any seller's or telemarketer's obligation to comply with relevant state and

federal laws, including but not limited to the TCPA, 47 U.S.C. 227, and 47 CFR part 64.1200.

CER (enhanced disnlav) nage 14 0f 71

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(3) The nature of the goods or services; and

(4) That no purchase or payment is necessary to be able to win a prize or participate in a prize

promotion if a prize promotion is offered and that any purchase or payment will not increase the

person's chances of winning. This disclosure must be made before or in conjunction with the

description of the prize to the person called. If requested by that person, the telemarketer must

disclose the no-purchase/no-payment entry method for the prize promotion; provided, however, that,

in any internal upsell for the sale of goods or services, the seller or telemarketer must provide the

disclosures listed in this section only to the extent that the information in the upsell differs from the

disclosures provided in the initial telemarketing transaction.

(e) Required oral disclosures in charitable solicitations. It is an abusive telemarketing act or practice and a

violation of this part for a telemarketer, in an outbound telephone call to induce a charitable contribution,

to fail to disclose truthfully, promptly, and in a clear and conspicuous manner to the person receiving the

call, the following information:

(1) The identity of the charitable organization on behalf of which the request is being made; and

(2) That the purpose of the call is to solicit a charitable contribution.

[75 FR 48516, Aug. 10, 2010, as amended at 76 FR 58716, Sept. 22, 2011; 80 FR 77559, Dec. 14, 2015; 89 FR 26784, 26785, Apr. 16,

2024]

§ 310.5 Recordkeeping requirements.

(a) Any seller or telemarketer must keep, for a period of 5 years from the date the record is produced unless

specified otherwise, the following records relating to its telemarketing activities:

(1) Acopy of each substantially different advertising, brochure, telemarketing script, and promotional

material, and a copy of each unique prerecorded message. Such records must be kept for a period of

5 years from the date that they are no longer used in telemarketing;

(2) Arecord of each telemarketing call, which must include:

(i) The telemarketer that placed or received the call;

(ii) The seller or person for which the telemarketing call is placed or received;

(ili) The good, service, or charitable purpose that is the subject of the telemarketing call;

(iv) Whether the telemarketing call is to an individual consumer or a business consumer;

(v) Whether the telemarketing call is an outbound telephone call;

(vi) Whether the telemarketing call utilizes a prerecorded message;

(vii) The calling number, called number, date, time, and duration of the telemarketing call;

(viii) The telemarketing script

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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