Equifax Consumer Services, Affiliates & Hillis Lawsuit
I received notice that Equifax Consumer Services LLC has entered into a class action settlement in Hillis v. Equifax Consumer Services, Inc. and Fair Isaac Corporation, known as, “the Hillis lawsuit”. The Hillis lawsuit alleged that Equifax failed to comply with the Credit Repair Organization Act (“CROA”) in connection with ECC’s offering of certain direct-to-consumer credit information products.
Equifax, throughout this litigation, has been strongly opposed the argument that Equifax was a “Credit Repair Organization” or that the products in question were subject to CROA. They go on to say in the notice:
Additionally, the Court’s rulings while the case was being litigated would have made it extremely difficult for the plaintiffs to ultimately succeed on their claims. Nonetheless, Equifax and our co-defendant, Fair Isaac Corporation, made the strategic and business decision to resolve the Hillis litigation in a class action settlement. The resulting settlement agreement has received final approval from the court, and we are now in the process of implementing its terms.
One of the provisions of the settlement is around statements and phrases that Equifax and Fair Isaac cannot use in describing their products. Because affiliates also market these products they must advise affiliates (like the e-mail) of the injunctive relief terms, and notify affiliates that they must also comply with these injunctive relief terms. Lastly they must request that they acknowledge receipt of the injunctive relief terms.
How does this advantage sound?
From the email on how to be a released party…
The advantage to you if you do acknowledge receipt of and your commitment to comply with the injunctive relief terms is that your organization will be a “Released Party” under the terms of the Hillis settlement.
The Terms of the Injunctive relief.
Note the mention of banner ads, keyword purchases/auctions, metatag use, and search engine optimization or SEO. I guess no one has gotten around to trackbacks or social tagging?
SUMMARY OF HILLIS INJUNCTIVE RELIEF TERMS APPLICABLE TO CONTRACTUAL ASSOCIATES
The following injunctive relief terms apply to “Contractual Associates” of Equifax. Under the Agreement, these injunctive relief terms must be implemented until September 6, 2009:
A. Relevant definitions:
“Associated Literature” means the marketing and advertising used in connection with the Offerings, including radio advertisements, television advertisements, print advertisements, banner advertisements, email campaigns, newsletters, marketing and advertising statements contained in [] Websites, internet keyword purchases/auctions, metatag embedment, and search engine optimization.
“Contractual Associate” means any entity with which the Defendants have a contractual relationship whereby the entity (i) posts a link to a Defendant’s Website on its website and receives a commission (or other compensation) for driving traffic to the Defendant’s Website; (ii) advertises, promotes, markets, provides, and/or sells any Offering; or (iii) offers a private label or co-branded version of any of Defendants’ Offerings.
“Offering” means those products or services that are offered by Equifax or Fair Isaac for sale to consumers in return for the payment of money and are further identified as one of the following (including all components, features, content and variants thereof, regardless of the website from which the purchase is made): Score Power; Credit Watch; Score Watch; 3-in-1 Monitoring; Credit Rankings with Score Power; Credit Rankings with 3-in-1 with Score Power; Credit Rankings with Credit Report; Credit Rankings with 3-in-1; 3-in-1 with Score Power; Score Power by mail; Credit Watch by mail; FICO Score (with Equifax, TransUnion or Experian reports); FICO Deluxe; Suze Orman FICO Kit; CreditSync; and Credit Advantage.
“Released Parties” means and refers to: [] (iii) Contractual Associates who (a) acknowledge receipt of the terms of Injunctive Relief, in accordance with Paragraph 66 hereof, and (b) marketed, sold, or made representations concerning any of the Offerings; provided however, that a Contractual Associate is a Released Party only with respect to claims arising from the marketing, sale, purchase, representations concerning, or use of the Offerings.
B. Injunctive relief terms applicable to Contractual Associates:
1. Offerings and Associated Literature must not use the following terms: “improve,” “enhance,” “boost,” “raise” and “increase” in the same phrase as “score” or “rating”.
2. Offerings and Associated Literature must not use the phrases “credit repair,” “credit rebuilding,” “credit fix,” “repair your credit,” “fix your credit” or combinations of those words.
3. Offerings and Associated Literature must not use the terms “advice”, “tips”, “suggestions” and “instructions” in the same phrase as “improving,” “enhancing,” boosting,” “raising” and “increasing” a credit score or credit rating.
4. Offerings and Associated Literature that refer to the Score Simulator must add an explanation regarding the general nature of the simulated score associated with the Score Simulator, and must not suggest that the simulated score is “always” (or its equivalent) predictive of one’s actual score.
I have to wonder…
Since meta tags are present in the relief, and Google is getting into the performance game, how or who might be liable for automated or algorithmic advertising slots if this issue should bump up in the future? Is there a lawyer in the house?
