Practices Act," and , Florida Statutes (2011), the STATE OF FLORIDA, OFFICE OF. THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS (hereafter the

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Malcolm Perry
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1 STATE OF FLORIDA DEPARTMENT OF LEGAL AFFAIRS OFFICE OF THE ATTORNEY GENERAL In the Matter of: Experian Information Solutions, Inc. Respondent ~----~/ AG Case Numbers: L ASSURANCE OF VOLUNTARY COMPLIANCE PURSUANT TO Chapter 501, Part II, "The Florida Deceptive and Unfair Trade Practices Act," and , Florida Statutes (2011), the STATE OF FLORIDA, OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS (hereafter the "Department") investigated certain advertising practices of EXPERIAN INFORMATION SOLUTIONS, INC. (hereafter "Respondent"). Respondent is prepared to enter into this Assurance of Voluntary Compliance (hereafter "A VC") with the Department without an admission of wrongdoing and for the purpose of resolving this matter only. Pursuant to (6), Florida Statutes (2011), the Department, by virtue of the power vested in it by said statute, by and through its undersigned Deputy Attorney General or designated representative, does accept this A VC in termination of the investigation into advertising practices of Respondent related to unlimited subscription plans intended for personal, noncommercial use. 1. STIPULATED FACTS 1.1 Respondent is registered in Florida as a foreign for-profit corporation, and has a principal place of business located at 475 Anton Boulevard, Costa Mesa, California At all times during the course of this investigation Respondent was engaged in commerce by, among other things, advertising and selling "AutoCheck Vehicle History Reports" through Respondent's website of Page 1 of 11

2 1.3 Respondent's "AutoCheck Vehicle History Reports" are marketed to consumers who are in the market to purchase or sell a used vehicle; commercial automobile dealers who purchase or sell used vehicles; insurance companies; warranty companie;, financial organizations; auto auctions; and others, including government agencies and law enforcement entities. 1.4 Currently, retail consumers can select various options to purchase one or more AutoCheck Vehicle History Reports which may include a single report or a 30-day subscription service offering access to an unlimited number of reports for personal, noncommercial use ("Unlimited Reports"). 1.5 The "Unlimited Reports" subscription service is subject to acceptance of Respondent's "Terms and Conditions," which appear under a separate hyperlink on the bottom of the webpage. 1.6 One condition of the "Terms and Conditions" is as follows: AutoCheck Vehicle History Reports ("Reports") purchased on the AutoCheck consumer site ( either directly or through affiliates, are intended for personal use only, and not for commercial use. "Commercial use" is defined as use by persons engaged in the business of buying and/or selling of automobiles, the resale or redistribution of the Reports, or any other business purpose. Without limiting the foregoing definition, personal use of the service is defined to not ordinarily exceed 100 reports during any 30-day period from the date of purchase or 50 reports in one AutoCheck session ("AutoCheck Session" is defined as usage of the AutoCheck.com site for a 30-minute period without refreshing or closing the Internet browser). Exceeding these limits will result in a temporary suspension of your account until Experian approves and reactivates your account at Experian's discretion. ANY COMMERCIAL USE OF THE AUTOCHECK VEHICLE HISTORY REPORTS PURCHASED ON THE AUTOCHECK CONSUMER SITE IS STRICTLY PROHIBITED AND ANY SUSPECTED COMMERCIAL USE WILL LEAD TO THE DEACTIVATION OF YOUR ACCOUNT, THE FORFEITURE OF THE RIGHT TO A REFUND OF ANY MONIES ALREADY PAID TO AUTOCHECK AND MAY RESULT IN LEGAL PROSECUTION. WE RESERVE THE RIGHT TO IMPOSE, AND YOU AGREE TO PAY TO EXPERIAN, AN ADDITIONAL CHARGE OF $19.99 FOR EACH AUTOCHECK VEHICLE HISTORY Page 2 of 11

3 REPORT THAT EXPERIAN DEEMS WAS ACCESSED FOR COMMERCIAL PURPOSES. COMMERCIAL USERS OF THE AUTOCHECK CONSUMER SITE AND THEIR TRANSFEREES ARE NOT ELIGIBLE FOR AND WILL NOT BE COVERED BY AUTOCHECK BUYBACK PROTECTION. AutoCheck offers a commercial service at Respondent suspends accounts purchased under the "Unlimited Reports" subscription service if the subscriber violates the limits imposed in the Terms and Conditions listed on Respondent's webpage. 1.8 For the purposes of this A VC, the Department did not investigate any issues regarding Respondent's "TitleGuard" service which is offered in conjunction with an unlimited subscription option. 2. DEFINITIONS 2.1 For the purposes of this A VC, the parties agree that the definitions provided in the following paragraphs within this section shall apply. 2.2 "Advertising" (including "Advertisement" and "Advertise") is any message disseminated by Respondent to the Florida public, or any segment thereof, which promotes, or is likely to promote, directly or indirectly, any product or service, whether conveyed in writing, visually, or orally: (a) In a newspaper, magazine, periodical, leaflet, flyer, catalog, brochure, circular, manual, report, poster, picture, illustration, drawing, invoice, estimate, contract, form, application, business card, letterhead, telefacsimile material, direct mail literature, telephone book, or any other written graphic, pictorial illustration, or printed material; (b) On any recording, radio, television, video, computer, public address system, by telephonic transmission, telefacsimile, internet or telecopier transmission, or during any other transmission; Page 3 of 11

4 (c) On any inside or outside sign or display, window display, bumper or window sticker, decal, label, or bulletin board; (d) (e) In any point-of-sale literature, price tag, sign, or billboard; and During any in-person appearance or otherwise during any in-person contact with the public or segment thereof. 2.3 "Clear and Conspicuous" (including "Clearly and Conspicuously") shall mean that a statement, representation, claim or term is readily noticeable and reasonably understandable by the person(s) to whom it is directed. The following shall be considered in determining whether a statement, representation, claim or term is clear and conspicuous: (a) Whether it is presented in a coherent and meaningful sequence with respect to other statements, representations, claims, or terms being conveyed; (b) Whether it is in close proximity to the statement, representation, claim or term it clarifies, modifies, explains, or to which it otherwise relates; (c) Whether it is contradictory to any statement, representation, claim or term it purports to clarify, modify, or explain, or is otherwise contradictory or confusing in relation to any other statement, representation, claim or term being conveyed; (d) Whether it is conveyed by means of an abbreviation and, if so, whether the abbreviation is commonly understood by the public, or approved by federal or state law; (e) (f) Whether it is legible; Whether it is of sufficient prominence in terms of print, size and contrast, as compared with accompanying statements, representations, claims or terms, so as to be readily noticeable and reasonably understandable by the person(s) to whom it is directed; Page 4 of 11

5 (g) Whether it is at a decibel level and speed so as to be readily noticeable and reasonably understandable by the person(s) to whom it is directed; and (h) Whether it appears for duration of time sufficient to allow a listener or viewer to have reasonable opportunity to notice, read, and understand. 2.4 "Reports" shall refer to the "AutoCheck Vehicle History Reports" offered by Respondent. 3..JURISDICTION AND VENUE 3.1 The parties agree that the State of Florida has jurisdiction over Respondent for the purposes of entering into this A VC and for any enforcement actions arising out of this A VC. 3.2 It is further agreed by the parties that venue for any matter relating to or arising out of this A VC shall lie solely in Orange County, Florida. 4. INJUNCTIVE TERMS 4.1 Respondent, in any future distribution, promotion, advertising or servicing of any product and/or service, including, but not limited to, subscription access to Respondent's Reports, anywhere within or from the State of Florida, is hereby enjoined from violating any applicable law, rule, and/or regulation, including, but not limited to, the following: (a) The Florida Deceptive and Unfair Trade Practices Act as contained in Chapter 501, Part II, Florida Statutes (2011); (b) (c) Section , Florida Statutes (20 11) Misleading Advertising; and All Federal Trade Commission (FTC) rules and regulations regarding or relating to advertising, which require, among other things, that conditions material to any advertisement are disclosed Clearly and Conspicuously. Page 5 of 11

6 4.2 Respondent and its parent, partners, successors, assigns, and any person or entity through which Respondent does business and each of their respective officers, directors, agents, servants, employees, and those other persons or entities in active concert or participation with them who receive actual notice of this A VC by personal service or otherwise, are hereby permanently restrained and enjoined from committing or performing the following acts or practices within or arising from the State of Florida: (a) Suspending or otherwise limiting a subscriber who purchased a subscription service which were advertised as offering an unlimited number of Reports for personal, noncommercial use from utilizing Respondent's services and accessing additional Reports for the sole reason that the subscriber accessed some threshold number of Reports deemed excessive by Respondent and such threshold number is not Clearly and Conspicuously disclosed to the subscriber. (b) Advertising a subscription service as offering access to an unlimited number of Reports for personal, noncommercial use if Respondent suspends access to additional Reports for the sole reason that a subscriber accesses any threshold numerical limitation of Reports during the duration of that subscription, and such threshold numerical limitation is not Clearly and Conspicuously disclosed to the subscriber. For the purposes of this section, both parties agree that a suspension exists if Respondent requires any subscriber to contact Respondent and substantiate the non-commercial nature of the subscriber's use based solely on the quantity of Reports accessed by the consumer during a period of time set by the Respondent. Page 6 of 11

7 5. MONETARY TERMS 5.1 The Respondent shall pay the sum of $10,000 (ten thousand dollars) pursuant to , Florida Statutes (2011), to the Department for investigative costs, attorney's fees, and current and future monitoring. Payment is due upon the date Respondent signs this A VC and shall be made by Respondent in the form of a certified funds made payable to the Department of Legal Affairs Revolving Trust Fund. 5.2 A signed copy of this A VC and the total payment due shall be sent to Assistant Attorney General, Jerrett D. Brock, Office of the Attorney General, Economic Crimes Division, 135 West Central Boulevard, Suite 1000, Orlando, Florida EFFECTIVE UPON ACCEPTANCE 6.1 The Director of Economic Crimes may refuse to accept this A VC at his discretion. The receipt of or deposit by the Department of any monies paid by the Respondent pursuant to the terms of this A VC shall not constitute acceptance by the Department. 6.2 This AVC shall become effective ninety (90) days after the date it is accepted and executed by all persons whose signature appears below ("Effective Date"). This A VC may be signed in counterparts. 7. CONSTRUCTION OF A VC 7. This A VC is the result of joint negotiations on the part of the Department and the Respondent. This AVC shall not be construed for or against either party owing to one party being more heavily involved in the preparation of this A VC. Page 7 of 11

8 8. APPLICABILITY 8. This A VC shall apply to and continuously bind the Respondent and its affiliated entities, successors, assigns and each of their officers, directors, agents, servants, and employees, whether acting directly or through any corporation, subsidiary, division, or other entity. 9. CHANGES IN LAW OR BUSINESS PRACTICES 9.1 It is further agreed by the parties that if any statutes change due to amendment, repeal, or disposition by the legislature, an agency, or court so that they would permit any action prohibited by any section of this A VC, that section of this A VC shall no longer have any force or effect. 9.2 If any clause, provision, or section of the A VC shall, for any reason, be held illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect any other clause, provision, or section of this AVC, and this AVC shall be construed and enforced as if such illegal, invalid, or unenforceable clause, section, or other provision had not been contained herein. 10. NO ADMISSION OF LIABILITY OR WAIVER OF DEFENSES 10.1 Notwithstanding its entry into this AVC and acceptance of all terms and conditions contained herein, Respondent and its parent, affiliated entities, and each of their respective officers, directors, agents, servants, employees, and attorneys deny any wrongdoing or liability of any kind whatsoever arising from the sale, distribution, marketing, promotion and/or servicing of any product or service Respondent shall not represent, directly or indirectly, that the Department has approved any of the Respondent's business practices, nor shall Respondent use the existence of this AVC to imply such approval. Page 8 of 11

9 11. RELEASE OF LIABILITY FOR PAST VIOLATIONS 11. In exchange for the consideration set forth above and upon full execution of this AVC, the Department releases Respondent from any cause of action, or claims for penalties, fines, or civil-liability arising out of or relating to Respondent's acts or omissions with regards to its marketing of "unlimited" Reports, as fully set forth in Section 1 of this A VC, that the Department could have brought against the Respondent under Chapter 501, Part II, Fla. Stat. (2011) for conduct which occurred prior to the Effective Date of this A VC. [INTENTIONALLY BLANK] Page 9 of 11

10 FOR THE RESPONDENT BY MY SIGNATURE I hereby affirm that I am acting in my capacity and within my authority as J 1(~-a of Experian Information Solutions, Inc. and that by my signature the Respondent, its direct, officers, employees, agents, successors and ass1gns are bound to the terms and conditions of this AVC. state of.ii It" no 1.5 COUNTY OF CfJOL ----==---='--'-==----- BEFORE ME, an officer duly authorized to take acknowledgments in the State of Illinois, personally appeared=:dt1v /J 5trtlU.~:::->2 and he acknowledged before me that!". he executed the foregoing instrument for the purposes therein stated, on this c:j'1 day of.~/)_(!~ h1 ----"--1!1--'-= "(...'--'-~, Sworn to and subscribed before me this d!)_ day of flf tlff! ~ '2012, $~ad?~ NOTARY PUBLIC a:ficial. SEAL BARBARA A PHIWPS NOTARY PUBLIC STATE OF UW018 flf COMMISSION EXPIRES:1<W2113 Page 10 of 11

11 FOR THE DEPARTMENT Assistant Attorney General Office of the Attorney General Department of Legal Affairs 135 West Central Blvd., Suite 1000 Orlando, Florida ( 407) phone, ( 407) Fax ~ ~~1.)/! Signed this _/ rector of Economic Crimes Office of the Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida t""-:'_v_"~_-~--~--' --z_day of Lb---'1-1' I Page 11 of 11

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STATE OF FLORIDA OFFICE OF THE ATTORNEY GENERAL DEPARTMENT OF LEGAL AFFAIRS IN THE MATTER OF: AG Number: L11-03-1037 ACCOUNTNOW, INC. ------------------------------------------------------------~/ ASSURANCE