On November 3, 2022, Pennsylvania Attorney General (and Governor-Elect) Josh Shapiro announced that his office had filed a lawsuit in the U.S. District Court for the Western District of Pennsylvania against New York-based Fluent, Inc.—a lead generator that connects companies to potential new customers through the consumers’ harvested personal data—and its subsidiaries for their role in allegedly assisting and facilitating the making of hundreds of thousands of unwanted telemarketing calls to Pennsylvania consumers. 

The lawsuit alleges that Fluent collected the personal data of Pennsylvania consumers through a series of promotional offerings on websites and thereafter sold that information to sellers and telemarketing companies (“Marketing Partners”).  According to the complaint, from 2018 to 2021, more than 4.2 million Pennsylvania consumers provided their information on one of Fluent’s websites.  Fluent drew the attention of the Pennsylvania Attorney General when it agreed to pay a $3.7 million civil penalty to the New York Attorney General in May 2021 relating to allegations that it supplied millions of fake public comments in opposition to proposed net neutrality rules.

The lawsuit alleges that by obtaining and selling telemarketing leads to the Marketing Partners, Fluent “provided substantial assistance or support to sellers and telemarketers” and that as result of Fluent’s substantial assistance, the Marketing Partners made telemarketing calls, including robocalls, to Pennsylvania telephone numbers or consumers without the consumer consent required by the federal Telemarketing Sales Rule (“TSR”).  The lawsuit further alleges that (1) the illegal calls would not have been made by the Marketing Partners but for Fluent’s substantial assistance or support; (2) Fluent knew or consciously avoided knowing that the Marketing Partners were engaged in practices that violated the TSR; (3) Fluent’s acts and practices constitute deceptive telemarketing acts or practices in violation of the TSR; (4) a TSR violation constitutes a violation of the Pennsylvania Telemarketer Registration Act and, by extension, a violation of the Pennsylvania Consumer Protection Law (“CPL”); and (5) such acts and practices constitute unfair methods of competition and/or unfair or deceptive acts or practices in violation of the CPL.

The lawsuit also includes a separate count alleging that Fluent violated the CPL by engaging in deceptive and misleading business practices in connection with its lead-generating practices, such as promises of free gifts to lure consumers to provide their contact information.

The lawsuit seeks a permanent injunction, civil penalties, and other equitable relief under the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§ 6101-6108, Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1, et seq., Pennsylvania’s Telemarketer Registration Act, 73 P.S. § 2241, et seq., and the Federal Trade Commission’s Telemarketing Sales Rule, 16 C.F.R. Part 310.

A critical allegation in the complaint that is the basis for the alleged TSR violations is the absence of valid consumer consent for the telemarketing calls made by the Marketing Partners.  According to the complaint, Fluent’s websites contained a fine print, obscured disclosure that consumers were providing consent to be contacted by the Marketing Partners and such disclosure did not satisfy TSR consent requirements.  As a result, the enforcement action should serve as a warning to both lead generators and lead buyers of the need to consult with counsel to ensure that consent for telemarketing calls is obtained in compliance with TSR requirements.