ConsumerDirect, Inc. v. Pentius, LLC

• Court: District Court, C.D. California
• Decided: August 9, 2024
• Docket: 8:21-cv-01968
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 12 13 CONSUMERDIRECT, INC., ) Case No. 8:21-cv-01968-JVS-ADS 14 Plaintiff, ) 15 ) FINDINGS OF FACT & 16 v. ) CONCLUSIONS OF LAW 17 ) 18 PENTIUS, LLC; ARRAY US, INC.; ) 19 SYSTEM ADMIN, LLC; CTH ) 20 SKIN CORP.; PENTOPS, LLC, ) 21 Defendants ) 22 _____________________________ 23 24 Plaintiff ConsumerDirect, Inc. (“ConsumerDirect”), alleges that Defendants 25 Pentius, LLC (“Pentius”) and Array US, Inc. (“Array”) (collectively, 26 “Defendants”), infringed on their trademark and competed unfairly by violating 27 their agreements with the three credit bureaus. Having carefully considered and 28 1 reviewed all the testimonial and documentary evidence presented by the parties in 2 the matter, the Court now enters the following findings of fact and conclusions of 3 law. Fed. R. Civ. P. 52. 4 I. JURISDICTION & VENUE 5 1. This Court has subject matter jurisdiction over this action pursuant to 6 28 U.S.C. §§ 1331 and 1338(a)-(b), and pendent jurisdiction over the state law 7 claims under 28 U.S.C. § 1367 because those claims are joined with substantially 8 related claims under the Lanham Act. This Court also has jurisdiction pursuant to 9 28 U.S.C. § 1332 because the amount in controversy exceeds $75,000 exclusive of 10 interest and costs and is between citizens of different states. Venue is proper in 11 this District under 28 U.S.C. §§ 1391(b)(2) and (3) because a substantial part of the 12 events giving rise to the claims occurred in this District where ConsumerDirect 13 maintains its principal place of business. These claims are properly before this 14 Court as equitable issues. 15 II. PROCEDURAL BACKGROUND 16 2. ConsumerDirect filed this lawsuit on December 1, 2021. (Complaint, 17 Dkt. No. 1.) On May 9, 2022, Array filed a counterclaim against ConsumerDirect. 18 (Dkt. No. 127.) Some claims were resolved by way of summary judgment. (Dkts. 19 Nos. 311 (sealed), 321, 323 (sealed), 354.) Other claims were resolved via a jury 20 trial. (Dkt. Nos. 501–504.) The only remaining issues before the Court are 21 ConsumerDirect’s trademark infringement, false designation of origin, and unfair 22 competition law claims against Pentius and Array. (Dkt. Nos. 438, 519.) In a 23 seven-day jury trial, held on October 26, 2023, to November 8, 2023, the parties 24 presented live testimony and exhibits. The parties submitted proposed findings of 25 fact and conclusions of law. (Dkt. Nos. 520, 525 (sealed).). 26 III. FINDINGS OF FACT 27 3. As a preliminary matter, the Court notes that the jury provided an 28 advisory verdict relevant to ConsumerDirect’s trademark infringement and false 1 1 designation of origin claims against Pentius and Array. (Dkt. No. 501.) When 2 asked whether ConsumerDirect prevailed on its claim for trademark infringement 3 against Array and Pentius, the jury answered “no.” (Id.) When asked whether 4 ConsumerDirect prevailed on its claim for false designation of origin against Array 5 and Pentius, the jury answered “no.” (Id.) And while the Court notes that this 6 verdict is strictly advisory, the Court affords considerable weight to the 7 independent perspective of the jury—both in terms of the jurors’ evaluation of the 8 evidence and their assessment of the witnesses’ credibility. 9 4. The Court also addresses the credibility of two key witnesses: David 10 Coulter (“Coulter”), ConsumerDirect’s President and CEO, and Steve Reger 11 (“Reger”), Executive Vice President of Sales & B2B Marketing of 12 ConsumerDirect. As explained in the Court’s prior order, ConsumerDirect 13 committed fraud on the court in the sworn declarations and depositions of Coulter 14 and Reger. (Dkt. No. 417.) Where the Court has made factual determinations on 15 disputed issues, it gives both witnesses’ testimony substantially reduced weight. 16 A. The Parties 17 5. ConsumerDirect is a Nevada company that provides consumer self- 18 help financial services, including credit management, credit reporting services, 19 credit counseling, and credit monitoring. (Declaration of David Coulter (“Coulter 20 Decl.”), Dkt. No.262-3, ¶ 2.) ConsumerDirect also partners with other financial 21 services companies to create “white labels” for them, which allows these partners 22 to display and utilize ConsumerDirect’s financial services platform on their 23 websites. (Id.) 24 6. Pentius is a Delaware company that provides “direct-to-consumer” 25 services. (11/1 Tr. AM 132:12-16.) Pentius provides credit and identity protection 26 information and services to consumers though various brands it owns. (Id.) 27 Pentius was operating for several years before Martin Toha (“Toha”), Array’s CEO 28 and founder, later founded Array. (Id. at 132:4-11.) 2 1 7. Array is a Delaware company that provides “business-to-business-to- 2 consumer” services. (Id. at 22:21-23.) Array serves its clients’ consumer credit 3 monitoring businesses through websites to offer more user-friendly credit score 4 services to consumers. (Id.; Deposition Transcript of Martin Toha (“Toha Depo. 5 Tr.”), Dkt. No. 225-9, at 23:3-9.) Array began as a division of Pentius in 2019 and 6 2020 to test the viability of its product. (11/1 Tr. AM 133:19-134:24.) An initial 7 iteration of Array was named Credmo. (Id.) But because it began being marketed 8 externally, the name was changed to Array. (Id.) Credmo/Array was a part of 9 Pentius until the companies later separated. (Id.) 10 8. In the third quarter of 2020, Pentius and Array decided to separate and 11 began the process of restructuring the companies, incorporating a new entity, 12 dividing full-time employees between Pentius and Array, and performing other 13 tasks required to separate the two entities. (11/1 Tr. PM 10:14-11:19.) The 14 process took several months. (Id.) 15 B. Trademark Infringement and False Advertising 16 9. ConsumerDirect offers a product called Smart Credit, which it offers 17 directly to consumers and through co-branding or “white label” partnerships with 18 other businesses. (10/31 Tr. AM 70:16-19, 71:10-72:3.) ConsumerDirect owns 19 the trademarks SMARTCREDIT and SMARTCREDIT.COM. (Id. at 72:10-17; 20 10/31 Tr. PM 81:22-82:2; Final Pre-Trial Conference, Dkt. No. 438, at 3–4.) 21 22 10. The domain smartcreditview.com was registered and owned by CTH 23 Skin Corp., a white label client of Array. (Final Pre-Trial Conference at 4; Trial 24 Ex. 509.) CTH Skin Corp. is a separate entity from Array and Pentius. (11/1 Tr. 25 PM 60:19-61:2, 63:12-15; 11/3 Tr. PM 17:4-13.) The smartcreditview.com 26 website employed Array and Pentius’ technology; however, neither Array nor 27 Pentius owned, registered, selected, or used the domain smartcreditview.com. 28 (11/1 Tr. AM 48:3-5; 11/1 Tr. PM 61:8-62:4.) 3 1 11. Under Array’s agreements with its white label clients, including CTH 2 Skin Corp., the client is responsible for clearing any trademark or intellectual 3 property concerns connected with a domain name. (Trial Ex. 360; 11/1 Tr. PM 4 64:13-65:24.) This is consistent with the responsibilities ConsumerDirect imposes 5 on its own white label partners. (11/3 Tr. PM 54:9-55:12 (testifying that, in a 6 separate lawsuit involving trademark infringement claims against ConsumerDirect, 7 ConsumerDirect took the position that its white label client had control of its 8 public pages and would have been responsible for any trademark infringement on 9 those pages, not ConsumerDirect as the platform provider).) 10 12. In August 2021, Ken Greaux at TransUnion notified Array and 11 Pentius that he felt smartcreditview.com might infringe on TransUnion’s trademark 12 creditviewdashboard. (Trial Ex. 154.) Upon being notified of TransUnion’s 13 concerns, Array immediately stopped accepting new enrollments for 14 smartcreditview.com. (11/1 Tr. PM 70:2-74:11.) CTH Skin Corp. briefly left up a 15 log-in page for existing customers to access until those customers could be 16 transferred to a new domain. (Id.; Trial Ex. 505.) 17 13. ConsumerDirect’s representative at trial testified that ConsumerDirect 18 was not aware of a single customer who contacted ConsumerDirect to say they 19 signed up for “smartcreditview.com” but actually intended to sign up for 20 smartcredit.com. (10/31 Tr. PM 20:16-21:1, 21:15-23.) Nor was 21 ConsumerDirect’s representative aware of a single customer who contacted 22 ConsumerDirect to say they were confused between Array or Pentius on one hand, 23 and Smart Credit on the other hand. (Id.) Thus, the Court finds that no customers 24 confused smartcreditview.com with ConsumerDirect’s Smart Credit. 25 14. Array received only a few hundred dollars in revenue from CTH Skin 26 Corp.’s smartcreditview.com white label. (Trial Ex. 232; 11/3 Tr. AM 37:23- 27 38:9.) 28 15. There was no evidence at trial that Pentius received any 4 1 revenue—directly or indirectly—from CTH Skin Corp.’s smartcreditview.com 2 white label. 3 16. Array and Pentius had no notice of ConsumerDirect’s trademark 4 infringement claim until ConsumerDirect sent its demand letter on November 15, 5 2021. (Trial Ex. 131; 11/1 Tr. PM 74:13-76:10; 11/3 Tr. AM 73:24-74:4.) 6 Smartcreditview.com had already ceased accepting new enrollments by the time 7 Array received the letter. (Trial Ex. 131; 11/1 Tr. PM 74:13-76:10; 11/3 Tr. AM 8 73:24-74:4.) Although Array scheduled a call with ConsumerDirect to discuss the 9 claim, ConsumerDirect’s lawyers canceled the call and filed this lawsuit on 10 December 1, 2021, without ever conferring with Array or Pentius. (Trial Ex. 131; 11 11/1 Tr. PM 74:13-76:10; 11/3 Tr. AM 73:24-74:4.) 12 17. The Court finds that Array and Pentius did not use the domain 13 smartcreditview.com. Any use of the smartcreditview.com domain was by third- 14 party CTH Skin Corp.—not Array or Pentius. 15 C. Merged Credit Reports 16 18. The three credit bureaus, TransUnion, Experian, and Equifax, allow 17 credit reporting companies to purchase a merged credit report containing 18 information from all three bureaus (a “3B Report”). (11/2 Tr. AM 11:19-12:2.) 19 The bureaus have reciprocity agreements between them that address the costs the 20 bureaus pay to each other when using another’s data. (Id.) Under these 21 agreements, each bureau is allowed some negotiation with credit reporting 22 companies over the price of credit reports. (Deposition Transcript of Ken Greaux 23 (“Greaux Depo. Tr.”), Dkt. No. 230-13, at 44:11-45:8, 144:12-19.) 24 19. Pentius negotiated and agreed to contracts to obtain credit data from 25 each of the three credit bureaus: TransUnion, Equifax, and Experian. (11/1 Tr. 26 AM 128:23-129:15.) It was not an easy thing to do, and “very few companies go 27 through the effort to contract [with] all three bureaus,” which gave Pentius and 28 later Array a unique competitive advantage. (Id.) 5 1 20. The 2015 contract between Pentius and TransUnion did not contain 2 any provision regarding premium pricing for mergeable 1B reports. The 2015 3 agreement between Pentius and TransUnion defined Pentius’ “Affiliates” as “any 4 corporation, partnership or legal entity, which is controlled or owned by Pentius, 5 Inc. or shall have common control and/or common ownership to Pentius, Inc.” 6 (Trial Ex. 485, at 1.) The 2015 agreement further defines Pentius and its Affiliates 7 as “the Company.” (Id.) The Court finds that Array, as part of the “Company,” 8 had the same rights under the agreement as Pentius, including the right to purchase 9 consumer credit data to be used to support Array’s customer relationships. 10 21. Before Pentius and Array were separated, Array relied on Pentius’ 11 agreements with each of the credit bureaus to obtain credit data, and it was written 12 into each of the agreements that Array could obtain the data through the Pentius 13 Agreement. (11/1 Tr. PM 15:1-14.) The Equifax agreement included an 14 amendment that named Array as part of the transition, while the other two 15 agreements with TransUnion and Experian allowed for Array to obtain data by 16 permitting affiliated entities or entities under common ownership to share data. 17 (Id.) 18 22. Array executed the agreement with DataOne, Inc. (“DataOne”), which 19 is a company operated by Kevin Carroll, in October 2020. (Trial Ex. 212; 11/1 Tr. 20 PM 92:10-19.) At the time the agreement was executed, Array was still a part of 21 Pentius, which Toha owned. (11/1 Tr. PM 13:24-14:13.) 22 23. Ken Greaux of TransUnion testified that, in 2020, it was not a 23 violation for Array to fulfill its customer contracts through the Pentius agreement. 24 (11/2 Tr. PM 10:4-13, 62:18-21.) It also did not violate Pentius’ agreement with 25 TransUnion in 2020 to merge 3B reports, and there was no price “floor” or 26 minimum price in the agreement. (11/2 Tr. AM 55:20-24.) ConsumerDirect 27 admitted that Greaux would be in the best position to speak about TransUnion’s 28 pricing with Array and that there was nothing in Pentius’ contract with TransUnion 6 1 in 2020 that prevented Array or Pentius from taking those actions. (10/31 Tr. PM 2 58:9-13; 11/3 Tr. PM 50:3-9.) Thus, the Court finds that Array’s conduct with 3 respect to DataOne was permitted by the 2015 agreement between Pentius and 4 TransUnion. 5 24. The alleged contractual restrictions upon which ConsumerDirect relies 6 were not added until a later agreement between Array and TransUnion, which was 7 executed on November 15, 2021. (11/1 Tr. PM 39:3-40:25; Trial Ex. 492.) The 8 Court finds that the DataOne/Kevin Carroll business relationship about which 9 ConsumerDirect complains, which Array entered into in October 2020, did not 10 violate Array’s contractual obligations to TransUnion under the November 2021 11 contract. 12 25. TransUnion was aware of Array’s association with Pentius. Ken 13 Greaux testified that TransUnion knew that Array and Pentius were affiliated and 14 shared common ownership. (11/2 Tr. AM 73:20-74:3.) When TransUnion 15 requested that Pentius provide a list of URLs “where Pentius renders TransUnion 16 data in the URL browser experience,” Pentius disclosed Array white labels. (Trial 17 Ex. 305, at 6.) The Court finds that this is consistent with Array’s use of the 2015 18 agreement between Pentius and TransUnion as an affiliate of Pentius. 19 26. Based on the evidence, the Court finds that the contract between 20 Pentius and CSID (on behalf of Experian) has never contained any provision 21 regarding premium pricing for mergeable 1B reports. 22 27. The Court finds that Pentius compensated Equifax for its purchase of 23 mergeable 1B reports. 24 28. All three of the credit bureaus accepted Pentius’ and Array’s ability to 25 engage in merging the 1B credit reports into 3B reports. (11/1 Tr. AM 119:16-21.) 26 D. Use of Credit Data Purchased by Pentius for Array’s Clients 27 29. Based on the evidence presented at trial, the Court finds that during 28 the extended transition of business functions from Pentius to Array, Pentius 7 1 purchased data under its contracts with the credit bureaus for the benefit of Array’s 2 white label clients. 3 30. The Court finds that Array and Pentius made the credit bureaus aware, 4 and did not conceal, that during Array’s and Pentius’ business transition, Array 5 was obtaining credit data for the benefit of its white label clients through Pentius’ 6 contracts and platform. 7 31. The Court finds that ConsumerDirect did not rely on any of the 8 alleged representations it contends Array and Pentius made to the credit bureaus. 9 32. The Court finds that no consumers were misled or defrauded by any 10 alleged misrepresentation ConsumerDirect contends Array or Pentius made to the 11 credit bureaus. 12 IV. CONCLUSIONS OF LAW 13 A. Trademark Infringement Claim (15 U.S.C. § 1114) and False 14 Designation of Origin Claim (15 U.S.C. § 1125(a)) 15 33. To prevail on a claim of trademark infringement under the Lanham 16 Act, 15 U.S.C. § 1114, a party must prove: (1) that it has a protectable ownership 17 interest in the mark; and (2) that the defendant’s use of the mark is likely to cause 18 consumer confusion. Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 19 638 F.3d 1137, 1144 (9th Cir. 2011) (citing Dep’t of Parks & Recreation v. Bazaar 20 Del Mundo Inc., 448 F.3d 1118, 1124 (9th Cir. 2006)). 21 34. To prevail under a false designation of origin or federal unfair 22 competition claim, plaintiff must establish that it (1) has a valid, protectable 23 trademark that (2) defendant is using in a confusingly similar manner. S. Cal. 24 Darts Ass’n v. Zaffina, 762 F.3d 921, 929 (9th Cir. 2014). “The core element of 25 trademark infringement is the likelihood of confusion, i.e., whether the similarity 26 of the marks is likely to confuse customers about the source of the products.” 27 Freecycle Network, Inc. v. Oey, 505 F.3d 898, 902 (9th Cir. 2007) (quotations 28 omitted). 8 1 35. Thus, a claim for false designation of origin under 15 U.S.C. § 1125 2 requires proof of the same elements as a claim for trademark infringement under 15 3 U.S.C. § 1114. Brookfield Communs., Inc. v. W. Coast Entm’t Corp., 174 F.3d 4 1036, 1046 n.6 (9th Cir. 1999). 5 36. There are three ways in which a party can establish it has a protectable 6 interest in a mark: “(1) it has a federally registered mark in goods or services; (2) 7 its mark is descriptive but has acquired a secondary meaning in the market; or (3) it 8 has a suggestive mark, which is inherently distinctive and protectable.” Applied 9 Info. Scis. Corp. v. eBay, Inc., 511 F.3d 966, 969–70 (9th Cir. 2007). 10 37. Here, ConsumerDirect owns federal registrations for 11 SMARTCREDIT and SMARTCREDIT.com. (Final Pre-Trial Conference Order at 12 3–4.) Thus, the Court concludes that ConsumerDirect has a valid, protectable 13 trademark. 14 38. However, based on the evidence presented at trial, the Court 15 concludes that neither Array nor Pentius—as opposed to third-party CTH Skin 16 Corp.—“used” the SmartCredit mark. Neither Array nor Pentius were responsible 17 for any potential infringements under the white label agreement. (Trial Ex. 360; 18 11/1 Tr. PM 64:13-65:24.) This is consistent with the responsibilities 19 ConsumerDirect imposes on its own white label partners. (11/3 Tr. PM 54:9- 20 55:12.) 21 39. Moreover, to establish contributory liability for either claim, 22 ConsumerDirect must prove that Array and Pentius (1) “continued to supply [their] 23 services to [a third party] it knew or had reason to know was engaging in 24 trademark infringement” and (2) had “direct control and monitoring of the 25 instrumentality used by [the] third party to infringe” the smartcreditview.com 26 mark. See Louis Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 658 F.3d 936, 942 27 (9th Cir. 2011) (internal quotation marks omitted); see also BioCell Tech. LLC v. 28 Arthro-7, No. 12-00516, 2012 WL 12892937, at *12 (C.D. Cal. Nov. 19, 2012). 9 1 40. ConsumerDirect did not notify Array or Pentius of its infringement 2 claim until it sent its demand letter in November 2021. (Trial Ex. 131; 11/1 Tr. 3 PM 74:13-76:10; 11/3 Tr. AM 73:24-74:4.) By that point, CTH Skin Corp. ceased 4 its own use of the allegedly infringing domain smartcreditview.com. (Trial Ex. 5 131; 11/1 Tr. PM 74:13-76:10; 11/3 Tr. AM 73:24-74:4.) Based on the evidence 6 presented, the Court concludes that neither Array nor Pentius continued to supply 7 their services to CTH Skin Corp. when they knew or had reason to know that 8 smartcreditview.com was allegedly engaging in trademark infringement. 9 41. Thus, the Court concludes that neither Array nor Pentius can be 10 contributorily liable for trademark infringement and false designation of origin. 11 42. The jury returned an advisory verdict in favor of Array and Pentius on 12 ConsumerDirect’s claims for trademark infringement and false designation of 13 origin. (Dkt. No. 501.) When a claim is submitted to an advisory jury, “the court 14 is free to accept or reject the jury’s advisory verdict in making its own findings.” 15 Harris v. Sec’y. U.S. Dep’t of Army, 119 F.3d 1313, 1320 (8th Cir. 1997). 16 Compare 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and 17 Procedure § 2335 (3d ed. 2019) (“An advisory jury is an aid to the court in 18 discharging its functions.”), with Hunter v. Town of Mocksville, 897 F.3d 538, 563 19 (4th Cir. 2018) (an advisory verdict “is of no binding legal significance”), and 9 20 Charles A. Wright et al., Federal 26 Practice & Procedure § 2335 (3d ed.) (courts 21 finding deference owed to an advisory verdict “misconceive the function of an 22 advisory jury and seem to overlook the complete freedom the trial judge has in 23 using or disregarding its findings”). While the Court has conducted its own 24 analysis, the Court notes that the jury’s advisory verdict also supports the Court’s 25 conclusion that ConsumerDirect has failed to prove, by a preponderance of the 26 evidence, its claims for trademark infringement and false designation of origin. 27 See, e.g., Ohio House LLC v. City of Costa Mesa, No. 19-1710, 2022 WL 28 18284404, at *14 (C.D. Cal. Aug. 26, 2022). 10 1 B. California Business and Professions Code § 17200 Claim 2 43. California’s Unfair Competition Law (UCL) prohibits “any unlawful, 3 unfair or fraudulent business act or practice and unfair, deceptive, untrue or 4 misleading advertising.” Cal. Bus. & Prof. Code § 17200.1 5 44. In its prior order, the Court granted summary judgment to Array and 6 Pentius on the unfair prong of the UCL claim. (Dkt. No. 311, at 20–23 (sealed).) 7 45. A business act is fraudulent within the meaning of § 17200 if 8 “members of the public are likely to be deceived.” Comm. on Children’s 9 Television v. Gen. Foods Corp., 35 Cal. 4th 197, 211 (1983). “Claims brought 10 under the fraudulent prong under the UCL or sounding in fraud must satisfy Rule 11 9(b).” AK Futures v. Limitless Trading Co., LLC, No. 21-cv-01154, 2021 U.S. 12 Dist. LEXIS 219445, at *15 (C.D. Cal. Oct. 6, 2021) (citing Faulk v. Sears, 13 Reobuck & Co., No. 11-2159, 2011 U.S. Dist. LEXIS 131792, at *14 (N.D. Cal. 14 Nov. 14, 2011); Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) 15 (holding that where plaintiff alleges unified course of fraudulent conduct and relies 16 entirely on that conduct as the basis of the claim, the claim is grounded in fraud 17 and must satisfy Rule 9(b))). 18 46. ConsumerDirect alleges that Array and Pentius made 19 misrepresentations to the credit bureaus to conceal Array’s and Pentius’ improper 20 use of credit data purchased by Pentius for the benefit of Array’s white label 21 clients. ConsumerDirect also alleges that Array and Pentius competed unfairly and 22 violated their agreements with the credit bureaus by purchasing credit reports from 23 credit bureaus individually, at lower prices, and using their own technology to 24 merge the individual reports into 3B Reports without paying the premium 3B 25 prices. However, based on the evidence presented at trial, the Court concludes that 26 there are no clear and cognizable rules or industry standards that prohibited Array 27 28 1 This is a different standard than is required for common law fraud. 11 1 or Pentius from leveraging their technology to purchase credit reports from credit 2 bureaus individually, at lower prices, and then merge them into 3B Reports without 3 paying the premium 3B prices. 4 47. The primary agreement that is the focus of ConsumerDirect’s legal 5 claim is an agreement between Array and DataOne. ConsumerDirect argues that 6 Array was able to offer Kevin Carroll artificially low prices by violating Array’s 7 and Pentius’ agreements with credit bureaus that allegedly prohibited merging 8 three credit reports from each credit bureau into a 3B Report for less than premium 9 pricing. 10 48. Based on the evidence presented at trial, the Court concludes that 11 Array’s and Pentius’ use of their contracts and merging technology, which lowered 12 prices for customers, violated no rules, agreements, or industry standards. Array 13 and Pentius’ conduct was consistent with their contractual rights under the 14 agreements with the credit bureaus. The Court concludes that no members of the 15 public were deceived or likely to be deceived by Array’s and Pentius’ pricing and 16 merging practice. The consumers who obtained 3B credit reports that were merged 17 by Array and Pentius were not defrauded or misled in any way. 18 49. Thus, the Court concludes that ConsumerDirect has not proven, by a 19 preponderance of the evidence, that Array or Pentius violated California Business 20 and Professions Code § 17200. 21 22 23 24 V. CONCLUSION 25 For the reasons stated above, the Court enters its findings of fact and 26 conclusions of law as stated herein. Defendants shall file a proposed judgment 27 forthwith. Plaintiff shall file any objections thereto within 7 days of the other 28 party’s filing. If no objections are received within 7 days, the judgment will be 12 1 || entered immediately, and Federal Rule of Civil Procedure 52(b) will apply upon 2 || entry of judgment. 3 4 IT ISSO ORDERED. f a ee us Neon 6 || Dated: August 9, 2024 7 JAMES V. SELNA 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13