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Federal Trade Commission v. All U.S. Marketing LLC

United States District Court, M.D. Florida, Orlando Division

May 22, 2017

FEDERAL TRADE COMMISSION and STATE OF FLORIDA, OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, Plaintiffs,
v.
ALL U.S. MARKETING LLC, et al., Defendants.

          ORDER

          JOHN ANTOON II United States District Judge

         The Federal Trade Commission and the State of Florida brought this action against eighteen Defendants, alleging violations of § 5(a) of the Federal Trade Commission Act[1](Counts One through Three), the Telemarketing Sales Rule[2] promulgated under the Telemarketing and Consumer Fraud and Abuse Prevention Act[3] (Counts Four through Twelve), and the Florida Deceptive and Unfair Trade Practices Act[4] (Count Thirteen). (First Am. Compl., Doc. 87). The Court previously entered Stipulated Orders for Permanent Injunction and Final Judgment against fifteen of the eighteen Defendants, (see Docs. 131, 132, 133, 134, 135, 136, & 154), and only three Defendants remain-Christian Serna, All Us Marketing LLC, and GRR Financial Services LLC. Now before the Court is Plaintiffs' Second Renewed Motion for Entry of Default Judgment and Order for Permanent Injunction and Monetary Relief (Doc. 166) against these three Defendants.

         The assigned United States Magistrate Judge has submitted a Report (Doc. 168) recommending that the motion be granted in part and denied in part. Specifically, the Report recommends that the Court:

• find these three Defendants liable on Counts One through Seven and Nine through Thirteen of the First Amended Complaint;
• decline to find these three Defendants liable on Count Eight of the First Amended Complaint;
• enter a permanent injunction against Defendants All Us Marketing LLC and GRR Financial Services LLC in a form acceptable to the Court;
• enter a permanent injunction against Defendant Christian Serna in a form acceptable to the Court if Plaintiffs comply with the Servicemembers Civil Relief Act[5] within the time for objecting to the Report;
• award equitable monetary relief against All Us Marketing LLC and in favor of Plaintiffs in the amount of $640, 747.00, provided that Plaintiffs may not collect any amounts that would result in Plaintiffs recovering more than $4, 890, 797.00 in this case;
• award equitable monetary relief against GRR Financial Services LLC and Christian Serna, jointly and severally, in the amount of $389, 915.00, provided that Plaintiffs may not collect any amounts that result in Plaintiffs recovering more than $4, 890, 797.00 in this case, and provided-as to Defendant Serna-that Plaintiffs comply with the Servicemembers Civil Relief Act within the time for objecting to the Report; and
• direct the Clerk to close the case after entry of judgment.

(Doc. 168 at 29-30).

         Plaintiffs have complied with the Servicemembers Civil Relief Act. (See Docs. 170 & 170-1). Plaintiffs have also filed an Objection (Doc. 171) to the Report. Specifically, Plaintiffs object to the portion of the Report recommending that these three Defendants not be held liable on Count Eight of the First Amended Complaint. Count Eight is one of Plaintiffs' claims under the Telemarketing Sale Rule, and in this count, Plaintiffs allege that Defendants violated 16 C.F.R. § 310.4(b)(1)(iii)(B), which provides:

It is an abusive telemarketing act or practice and a violation of this Rule for a telemarketer to engage in, or for a seller to cause a telemarketer to engage in... [i]nitiating any outbound telephone call to a person when ... [t]hat 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) [c]an demonstrate that the seller has obtained the express agreement, in writing, of such person to place calls to that person ...; or (2) [c]an demonstrate that the seller has an established business relationship ...

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