FTC Settlement Bars Deceptive Online Marketing Tactics

10/4/2010 FTC News Release:

The technology officer of a payday loan marketer has agreed to pay $850,000 to settle FTC charges for his role in an allegedly deceptive and unfair scheme that allegedly debited the bank accounts of hundreds of thousands of cash-strapped consumers in violation of federal law.

The FTC has been closely monitoring payday lending and other types of financial services as part of a broad campaign to protect consumers made vulnerable by the financial downturn.

According to the FTC complaint, Swish Marketing Inc., and its three officers, Mark Benning, Matthew Patterson, and Jason Strober, operated websites advertising short-term, or “payday,” loan matching services. The websites included an online loan application form that tricked consumers into unknowingly ordering a debit card when they applied for a loan online. . On numerous sites, clicking the button for submitting loan applications led to four product offers unrelated to the loan, each with tiny “Yes” and “No” buttons. “No” was pre-clicked for three of them; “Yes” was pre-clicked for a debit card, with fine-print disclosures asserting the consumer’s consent to have their bank account debited. Consumers who simply clicked a prominent “Finish matching me with a payday loan provider!” button were charged for the debit card. Other websites touted the card as a “bonus” and disclosed the fee only in fine print below the submit button. As a result, consumers allegedly were improperly charged up to $54.95 each.

In August 2009, the FTC charged these marketers and VirtualWorks LLC, the debit card company that helped them design the online offers, with deceptive business practices. The debit card company paid Swish Marketing up to $15 for each transaction. The debit card company defendants have settled the charges against them. (See http://www.ftc.gov/opa/2009/08/everprivate.shtm)

In April 2010, the FTC filed an amended complaint against the payday loan marketers, adding an allegation that the defendants sold consumers’ bank account information to the debit card company without the consumers’ consent. The amended complaint further alleges that Benning, Patterson, and Strober were made aware of consumer complaints about the unauthorized debits, as indicated in their e-mail and instant messages. For example, Patterson explained that consumers were going “ballistic” about the debit because the offer was defaulted to yes . . . and customers don’t see it.” More than six months after first learning of the complaints, Benning allegedly described the practice of defaulting to “Yes” as “fraud and identity theft.”

The settlement order announced today with Jason Strober, the Vice President of Product Development and/or Engineering of Swish Marketing, bars him from misrepresenting material facts about a product or service, such as the cost or the method for charging consumers. He also is permanently prohibited from misrepresenting that a product or service is free or a “bonus” without disclosing all material terms and conditions, and from charging consumers without first disclosing what billing information will be used, the amount to be paid, how and on whose account the payment will be assessed, and all material terms and conditions. The order further requires that transactions be affirmatively authorized by consumers, and that Strober, in marketing financial products or services, monitor his affiliates to ensure compliance with the order. He also is required to provide specific cooperation to the FTC in its ongoing litigation. In addition, the order requires him to pay $850,000.

The Commission vote to file the amended complaint and the stipulated final order as to Strober was 5-0. The order was filed and entered in the U.S. District Court for the Northern District of California, San Jose Division. Litigation will continue against the remaining defendants.

NOTE: Stipulated final orders are for settlement purposes only and do not constitute an admission by the defendants of a law violation. Stipulated orders have the full force of law when signed by the judge. The Commission issues a complaint when it has “reason to believe” that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest.

Click here to read the full FTC news release

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Manhattan U.S. Attorney Charges 37 Defendants Involved in Global Bank Fraud Schemes that Used “Zeus Trojan” and Other Malware

Manhattan U.S. Attorney Charges 37 Defendants Involved in Global Bank Fraud Schemes that Used “Zeus Trojan” and Other Malware to Steal Millions of Dollars from U.S. Bank Accounts

Defendants Allegedly Compromised Dozens of Accounts and Transferred More Than $3 Million in Stolen Funds to Hundreds of Accounts Opened Under False Identities

Note: The following are significant excerpts from the U.S. Department of Justice’s Septemeber 30, Press Release:

Summary of how the fraud scheme worked:

“According to Complaints unsealed today in Manhattan federal court, the cyber-attacks began in Eastern Europe, and included the use of a malware known as the “Zeus Trojan,” which was typically sent as an apparently-benign e-mail to computers at small businesses and municipalities in the United States. Once the email was opened, the malware embedded itself in the victims’ computers, and recorded their keystrokes—including their account numbers, passwords, and other vital security codes—as they logged into their bank accounts online. The hackers responsible for the malware then used the stolen account information to take over the victims’ bank accounts, and made unauthorized transfers of thousands of dollars at a time to receiving accounts controlled by the co-conspirators.

These receiving accounts were set up by a “money mule organization” responsible for retrieving the proceeds of the malware attacks and transporting or transferring the stolen money overseas. To carry out the scheme, the money mule organization recruited individuals who had entered the United States on student visas, providing them with fake foreign passports, and instructing them to open false-name accounts at U.S. banks. Once these false-name accounts were successfully opened and received the stolen funds from the accounts compromised by the malware attacks, the “mules” were instructed to transfer the proceeds to other accounts, most of which were overseas, or to withdraw the proceeds and transport them overseas as smuggled bulk cash.

The defendants charged in Manhattan federal court include managers of and recruiters for the money mule organization, an individual who obtained the false foreign passports for the mules, and money mules.

As part of the coordinated takedown earlier today, federal and local law enforcement officers arrested 10 of the defendants. Another 10 were previously arrested. The defendants taken into custody in New York today are expected to be presented in Manhattan federal court later this afternoon. Seventeen defendants are still being sought here and abroad.”

The Challenge Of International Cybercrime – Current &  Developing Solutions:

Manhattan U.S. Attorney PREET BHARARA said: “The digital age brings with it many benefits, but also many challenges for law enforcement and our financial institutions. As today’s arrests show, the modern, high-tech bank heist does not require a gun, a mask, a note, or a getaway car. It requires only the Internet and ingenuity. And it can be accomplished in the blink of an eye, with just a click of the mouse. But today’s coordinated operation demonstrates that these 21st century bank robbers are not completely anonymous; they are not invulnerable. Working with our colleagues here and abroad, we will continue to attack this threat, and bring cyber criminals to justice.”

District Attorney CYRUS VANCE, JR. said: “This advanced cybercrime ring is a disturbing example of organized crime in the 21st century—high tech and widespread. The 36 defendants indicted by our office stole from ordinary citizens and businesses using keyboards—not a gun. The far-reaching results of this investigation to date represent what people deserve: successful cooperation between city, state, federal, and foreign law enforcement officials, who worked together for a common goal—to identify and prosecute individuals who commit fraud against New Yorkers and the rest of the nation.

DSS Special Agent-in-Charge CHRISTOPHER PAUL said: “The charges announced today send a strong message: Diplomatic Security is committed to collaborating with our law enforcement partners to make sure that those who commit fraud face consequences for their criminal actions. Diplomatic Security’s strong relationship with the U.S. Attorney’s Office and other law agencies around the world continues to be essential in the pursuit of justice.

HSI Special Agent-in-Charge JAMES T. HAYES, JR., said: “Protecting our nation’s financial infrastructure is a primary mission for HSI and the El Dorado Task Force. We will continue to work with our law enforcement partners to identify and disrupt these international organizations.”

USSS Special Agent-in-Charge BRIAN G. PARR said: “As the incidence of transnational cybercrimes continues to rise, the Secret Service remains actively engaged in fighting this type of illegal activity. The results of this investigation clearly demonstrate how the Secret Service is forging strong partnerships with other law enforcement agencies, successfully combating cyberfraud, and bringing high-tech perpetrators to justice.”

Full Press Release:

Click here to read the full press release.

FTC Testifies Before House Judiciary Subcommittee on Antitrust in the Digital Age

FTC Press Release: 9/16/2010

My Note: An interesting part of the testimony referenced in this press release is the following statement:

“In other words, although most of our enforcement actions involve conduct that violates either the Sherman or Clayton Acts, the FTC Act gives the Commission some additional leeway to block anticompetitive conduct that may not reach the level of a traditional antitrust violation. This authority is particularly useful in rapidly changing markets, where new technology and new business models may complicate the antitrust analysis.”

FTC Applies Enduring Competition Principles to Today’s Dynamic Markets

In testimony before a U.S. House of Representatives subcommittee, the Federal Trade Commission explained how it protects consumers by applying well-established principles of competition to fast-changing technology markets.

“Some have argued that there should be different rules for markets characterized by rapid technological development, but Congress drafted the antitrust laws in general terms to accommodate changing markets and new products, and the laws are flexible enough to meet the challenges of the high-tech era,” said Bureau of Competition Director Richard Feinstein, testifying on behalf of the FTC before the House Committee on the Judiciary, Subcommittee on Courts and Competition Policy.

The testimony discusses two recent FTC matters to illustrate the agency’s flexibility in investigating and bringing enforcement actions in high-tech markets. Last year, the FTC charged Intel Corporation with using unfair methods of competition dating back to 1999 to stifle competition. The agency recently reached a settlement with the company that will help restore lost competition and prevent Intel from suppressing competition in the future, while allowing the company to compete aggressively.

Also last year, the FTC investigated Google’s proposed acquisition of mobile advertising firm AdMob and ultimately decided not to oppose the transaction. The Commission initially had concerns that the loss of head-to-head competition between the two leading mobile advertising networks would harm competition. However, Apple’s acquisition of the third-largest mobile ad network, Quattro, and the introduction of its own mobile advertising network, iAd, indicated that Apple would quickly become a strong player in the mobile advertising market.

The investigation provided an example of how the agency addresses rapidly changing technology markets, in which there is sometimes a short track record of past competition and great uncertainty about the future path of the market.

Going forward, the testimony states, the FTC’s merger reviews will continue to focus on market facts to predict how competition is likely to take place in the future. While that may be slightly more challenging in markets that are experiencing rapid change, “the Commission relies on time-tested tools . . . to protect consumers from anticompetitive mergers, and promote competitive markets where innovation and change can occur.”

The FTC vote approving the testimony and its inclusion in the formal record was 4-0, with Commissioner William E. Kovacic abstaining. The testimony can be found on the FTC’s website at http://www.ftc.gov/os/testimony/100916digitalagetestimony.pdf.

Copies of the Commission’s testimony are available from the FTC’s website at http://www.ftc.gov. The FTC’s Bureau of Competition works with the Bureau of Economics to investigate alleged anticompetitive business practices and, when appropriate, recommends that the Commission take law enforcement action. To inform the Bureau about particular business practices, call 202-326-3300, send an e-mail to antitrust@ftc.gov, or write to the Office of Policy and Coordination, Room 394, Bureau of Competition, Federal Trade Commission, 600 Pennsylvania Ave, N.W., Washington, DC 20580. To learn more about the Bureau of Competition, read “Competition Counts” at http://www.ftc.gov/competitioncounts.