Randy L. Dryer (924) Richard Mrazik (10623) PARSONS …online.wsj.com/public/resources/documents/2016_1214_consumer...Case 1:16-cv-00168-DBP Document 2 Filed 12/13 ... an innovation

Randy L. Dryer (924) Richard Mrazik (10623) PARSONS BEHLE & LATIMER 201 South Main Street, Suite 1800 Salt Lake City, UT 84111 Telephone: 801-532-1234 Facsimile: 801-536-6111 [email protected] [email protected] [email protected] Attorneys for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, NORTHERN DIVISION ICON HEALTH & FITNESS, INC., a Delaware corporation, Plaintiff, vs. CONSUMERAFFAIRS.COM, INC., a Nevada corporation, CONSUMERS UNIFIED, LLC, a Nevada limited liability company; and DAVID ZACHARY CARMAN, an individual Defendants.

NOTICE OF REMOVAL Civil No. 1:16-cv-00168-DBP Magistrate Judge Dustin B. Pead

Pursuant to 28 U.S.C. §§ 1441(a) and 1446, and in accordance with 28 U.S.C. § 1331 and

1367, Defendants ConsumerAffairs.com, Inc. (“ConsumerAffairs”), Consumers Unified, LLC

(“Consumers Unified”), and David Zachariah Carman (“Carman”) (sued incorrectly herein as

“David Zachary Carman”) (collectively, “Defendants”) hereby remove this civil action, pending

in the District Court of the First Judicial District, Cache County, Utah, to the United States

District Court for the District of Utah, Northern Division. In support of this Notice of Removal,

Defendants state as follows:

Case 1:16-cv-00168-DBP Document 2 Filed 12/13/16 Page 1 of 6

2

INTRODUCTION

1. Plaintiff Icon Health & Fitness, Inc. (“Plaintiff”) commenced this action by filing

a Complaint in the District Court of the First Judicial District, Cache County, Utah, on or about

November 4, 2016, which is docketed as Civil No. 160100397. See Exhibit 1.

2. Plaintiff served all Defendants personally on November 14, 2016.

3. This Notice of Removal is being filed on December 13, 2016, which is within

thirty days of November 14, 2016. See 28 U.S.C. § 1446(b). Therefore, this notice of removal is

timely filed within the time required by 28 U.S.C. § 1446(b).

4. Pursuant to 28 U.S.C. § 1446(a), copies of all process and pleadings that have

been received by Defendants, together with other filings on file with the District Court of the

First Judicial District, are filed herewith. See Exhibit 2 (Summons to Carman); Exhibit 3

(Summons to Consumers Unified); and Exhibit 4 (Summons to ConsumerAffairs).

PLAINTIFF’S CLAIMS

5. Plaintiff claims to be the “largest producer and manufacturer of exercise

equipment in the world.” Complaint (“Compl.”) ¶ 2.

6. Defendants own and/or operate a website (the “Website”) on which are posted

product and brand reviews written by consumers, and they publish an “Overall Satisfaction

Rating” for companies reviewed on the Website that ranges from 1 to 5 stars based on star

ratings submitted by consumers. See Compl. ¶ 5.

7. According to Plaintiff, although Defendants purport to operate “an independent,

trustworthy Web-based consumer news and resource center,” Compl. ¶3, Defendants

“discriminatorily post reviews and [star] ratings based solely on whether customers have paid

fees.” Id. ¶ 1.


3

8. Specifically, Plaintiff accuses Defendants of not posting and removing “legitimate

positive reviews” of Plaintiff’s business in order to lower its star rating and coerce it to pay fees

to Defendants. Id. ¶ 9.

9. In addition, according to Plaintiff, Defendants’ “actively solicit[] and post[]

positive reviews for paying members only.” Id. ¶ 8. Defendants also “cherry-pick” positive

reviews for companies that pay “exorbitant setup and monthly fees,” positioning those reviews at

the top of its Website in the relevant industry category, while not doing the same for Plaintiff.

Id. ¶¶ 20-21.

10. Further, on the Website pages of non-paying companies, according to Plaintiff,

consumers are greeted with screens that direct them away from those companies and to the pages

of companies who have paid Defendants to appear on the Website as a “top alternative” or as

“consumer recommended.” Id. ¶ 8.

11. Plaintiff alleges that Defendants gave it “no choice” but to participate in

Defendants’ fee-paying scheme because of the number of negative reviews posted about Plaintiff

on the Website, the lack of positive reviews, and because Defendants prevented it from

responding to consumer complaints and having its star rating adjusted. Id. ¶ 22.

12. Ultimately, Plaintiff declined to enter into any agreement to pay fees to

Defendants. Id. ¶ 25. As a result, Plaintiff alleges, it was damaged by Defendants’ “concerted

scheme of biased and manipulative review posting [on the Website] related to ICON and its

products.” Id. ¶ 1.

13. Based on this common set of core allegations, Plaintiff asserts four claims for

relief against all Defendants: (1) for unfair trade practices under Utah’s Unfair Practices Act,

Consumer Sales Practices Act, Truth in Advertising Act, and Unfair Competition Act; (2) for


4

intentional interference with prospective economic relations; (3) for violations of the federal

Racketeer Influenced and Corrupt Organizations Act (“RICO”) under 18 U.S.C. §§ 1961, 1962,

and 1964; and (4) for defamation. Plaintiff seeks both compensatory and punitive damages.

GROUNDS FOR REMOVAL

14. The present lawsuit is removable from state court pursuant to 28 U.S.C. §§ 1331

(federal question jurisdiction), 1367 (supplemental jurisdiction), and 1441 (removal of civil

actions).

15. This Court has original jurisdiction over Plaintiff’s Third Claim for Relief for

RICO violations under 18 U.S.C. §§ 1961, 1962, and 1964. See 28 U.S.C. § 1331 (“The district

courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or

treaties of the United States.”)

16. Plaintiff’s First, Second, and Fourth Claims for Relief—for unfair trade

practices, intentional interference with prospective economic relations, and defamation—are

state law claims arising from the same common set of core allegations as Plaintiff’s RICO claim.

Further, Plaintiff’s First, Second, and Fourth Claims for Relief seek damages for the same

allegedly wrongful conduct as Plaintiff’s RICO claim. Accordingly, this Court has supplemental

jurisdiction over Plaintiff’s First, Second, and Fourth Claims for Relief because they are so

related to Plaintiff’s RICO claim that they form part of the same case or controversy. See 28

U.S.C. 1367(a).

17. There are no other claims asserted against any other Defendants named in

Plaintiff’s Complaint.


5

JOINDER AND NOTICE

18. Undersigned counsel represents all Defendants joined and served in this matter,

and all Defendants hereby join in this Notice of Removal.

19. The United States District Court for the District of Utah, Northern Division, is the

appropriate place for a case removed from the District Court of the First Judicial District, Cache

County, Utah. 28 U.S.C. § 105(b)(4).

20. Pursuant to 28 U.S.C. § 1446(d), all adverse parties are being provided with this

Notice of Removal, and a copy of this Notice of Removal has been filed with the Clerk of the

District Court of the First Judicial District, Cache County, Utah. See Exhibit 5.

WHEREFORE, notice is given that this action is removed from the District Court of the

First Judicial District, Cache County, Utah, to the United States District Court for the District of

Utah, Northern Division.

RESPECTFULLY SUBMITTED this 13th day of December, 2016.

/s/ Richard E. Mrazik RANDY L. DRYER RICHARD E. MRAZIK PARSONS BEHLE & LATIMER Attorneys for Defendants


6

CERTIFICATE OF SERVICE

I hereby certify that on December 13, 2016, I electronically filed the foregoing NOTICE

OF REMOVAL with the Clerk of the Court using the CM/ECF system, and I served a copy of

the foregoing upon the following via prepaid, first class United States Mail.

Brad H. Bearnson Wayne K. Caldwell Aaron K. Bergman BEARNSON & CALDWELL. LLC 399 North Main, Suite 270 Logan, Utah 84321 Telephone: (435)752-6300 Facsimile: (435)752-6301 [email protected] [email protected] [email protected] [email protected]

_/s/ Richard E. Mrazik_________________


Brad H. Bearnson (#3633) Wayne K. Caldwell (#9466) Aaron K. Bergman (#13147) BEARNSON & CALDWELL, LLC 399 North Main, Suite 270 Logan, Utah 84321 Telephone: (435)752-6300 Facsimile: ( 435)7 52-6301 Email: [email protected]; wcaldwell @bearnsonlaw.com; and a bergman @bearnsonlaw.corn For emails, please cc: [email protected]

Attorneysfor Plaint{ff

IN THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT COUNTY OF CACHE, STATE OF UTAH

ICON HEALTH & FITNESS, INC., a Delaware corporation,

Plaintiff,

vs.

CONSUMERAFFAIRS.COM, INC., a Nevada corporation; CONSUMERS UNIFIED, LLC, a Nevada limited liability company; and DAVID ZACHARY CARMAN, an individual,

Defendants.

COMPLAINT AND

.JURY DEMAND

Civil No. ________ _

Judge: ----------

COMES NOW Plaintiff, ICON HEALTH & FITNESS, INC. (hereinafter "ICON"), by

and through its counsel, Brad H. Bearnson and the law firm of Bearnson & Caldwell, LLC, and

hereby complains against Defendants, CONSUMERAFFAIRS.COM, INC., CONSUMERS

UNIFIED, LLC, and DAVID ZACHARY CARMAN as follows:

Complaint and Jury Demand ICON v. ConsumerAffairs.com, Inc., et al. Pagel

Case 1:16-cv-00168-DBP Document 2-1 Filed 12/13/16 Page 1 of 22

NATURE OF THE CASE

l. This is a civil action seeking damages and injunctive relief. Defendants have

damaged and continue to damage ICON and its reputation through a concerted scheme of biased

and manipulative review posting related to ICON and its products. Defendants discriminatorily

post reviews and ratings based solely on whether customers have paid fees, and thus using

deception and manipulation, Defendants post negative reviews for those customers who do not

pay, such as ICON, and post positive reviews for those who do pay. Defendants' actions have

resulted in the incorrect and baseless degradation of ICON's good reputation, and Defendants

have committed the same in an effort to coerce ICON into paying for Defendants' purported

services and products.

PARTIES

2. ICON is a Delaware corporation, is the largest producer and manufacturer of

exercise equipment in the world, and it started in and remains headquartered in Logan, Utah.

ICON manufacturers numerous types of exercise equipment. It is the owner of such well known

trademarks as NordicTrack, iFIT, ALTRA, PRO-FORM and FREEMOTION. It produces,

manufacturers, markets, and ships its products worldwide. ICON originated from two college

classmates who in 1977 began planning a business. By the 1980s, ICON introduced folding

treadmills, an innovation that allowed people to take fitness equipment into their homes. Today,

ICON provides fitness equipment around the world and is committed to empowering its

customers with more active, balanced lifestyles by grounding its products in science,

biomechanics, and research, ease of use, safety, and technology. Recent awards have included:

Complaint and Jury Demand ICON v. ConsumerAffairs.com, Inc., et al. Page 2


• 2016 Golf Digest Editor's Choice Award (Free Motion Fitness Dual Cable

Cross)

• 2016 Consumer Reports Recommended Buy Award (NordicTrack

Commercial 1750 and NordicTrack Cl650)

• 2016 Consumer Reports Best Buy (NordicTrack Elite 9700 Pro and

NordicTrack 790 Pro).

• 2016 Consumer Reports Best Buy (Pro-Form 9000 Pro)

• Product Partners with Le Tour de France (Pro-Form)

• Product Partners with the Boston Marathon (Pro-Form)

3. ConsumerAffairs.com, Inc. ("ConsumerAffairs") is a Nevada corporation.

Consumers Unified, LLC ("Consumers Unified") is a Nevada limited liability company. David

Zachary Carman ("Carman") is an individual who is the sole Manager of Consumers Unified and

the President, sole Director, Secretary and Treasurer of Consumer Affairs. ConsumerAffairs

originated with James Hood, a former journalist, in J 998. On information and belief,

Consumer Affairs was then acquired by Carman in 2010. Consumer Affairs purports to be an

independent, trustworthy Web-based consumer news and resource center, which includes

consumer news and recall information and hosts consumer review pages on numerous product

brands, including products produced, manufactured, and marketed by ICON. On information and

belief, Carman established a business model when he acquired ConsumerAffairs. This model

was premised upon convincing consumer product/service companies to pay lucrative fees to

become "accredited" members of Consumer Affairs. Membership entitled such companies to



exclusive ConsumerAffairs ratings-related treatment and ratings image transformation services.

Consumers Unified participates in those services which are listed in detail below and is the entity

Carman uses to contract with and provide rating-related services to businesses that pay to

become accredited members of ConsumerAffairs.com.

GENERAL ALLEGATIONS

4. ConsumerAffairs hosts web-based product or brand reviews, but also publishes its

own version of an "Overall Satisfaction Rating" based on an unspecified subset of star-rated

reviews selected by Consumer Affairs and a summary of star ratings l-5 included in that subset.

Consumer Affairs also creates intentionally nuanced descriptions, designed to differentiaiJy

influence and manipulate internet consumers. The heading on ConsumerAffairs.com internet

review pages for paying members is entitled "Reviews and Complaints." In contrast, the heading

on ConsumerAffairs.com internet review pages for non-paying companies is "Complaints and

Reviews."

5. ConsumerAffairs creates an even more misleading turn of phrase in search engine

results. When consumers do internet searches containing a brand name or search for reviews of a

brand name listed on the Consumer Affairs website, non-paying brands produce search engine

results that state "Top [number] Complaints and Reviews about [brand name]." lfthe brand has

paid Consumer Affairs their demanded lucrative fees, the search engine results specify "Top

[number] Reviews and Complaints about [brand name]."

Complaint and Jury Demand ICON v. ConsumerAffairs.com, Inc., et at. Page4


6. In each instance, an overall star rating is also depicted matching

Consumer Affairs' rating for the given brand. However, ConsumerAffairs uses a deceptive,

biased, and discriminatory practice when posting reviews and determining which will be

included in the star ratings. The decisive factor is solely based on whether a company has agreed

to pay a monthly fee, and on whether ConsumerAffairs sees the company as being exploitable by

and thereby compelled to pay for Consumer Affairs' services.

7. For companies who agree to ConsumerAffairs' lucrative fee arrangements , they

can have reviewers update a star rating, have a star rating removed and the text lined out if the

consumer does not respond or the matter is addressed privately, or have the star rating entirely

removed and the review text lined out by claiming that the complaint is not factual. None of

these options are available to companies who do not pay ConsumerAffairs' lucrative setup and

monthly fees.

8. ConsumerAffairs also actively solicits and posts numerous positive reviews for

paying members only. Only review pages of non-paying members contain a superimposed screen

prompt on every page saying "Not Impressed With [non-paying brand]? Find a company you can

trust," or "Consumer Recommended [paying brand]," Research top [Industry Product]

recommendations on Consumer Affairs," with a link to "Compare Top Alternatives" or "Compare

Companies." None of these things are readily ascertainable by online consumers looking for

reviews without combing fine print scattered about other parts of a website. Instead,

superimposed on each paying member review page is a link to "Request more Information."

Complaint and Jury Demand ICON v. ConsumerAffairs.com, Inc., et al. PageS


9. ConsurnerAffairs.com leads consumers to believe that it is an independent and

trustworthy review site that can help consumers make an informed purchase decision. Beyond

these practices, as set forth below there is substantial evidence that ConsumerAffairs has also

intentionally not posted and removed legitimate positive reviews to specifically lower the total

star rating to damage ICON and other nonpaying companies and to coerce brands including

ICON to become lucrative fee-paying members.

10. At al1 material times, Defendants benefitted and or intended to benefit from the

activities of Consumer Affairs Sales Account Executive Emily Burke and other relevant

employees of ConsumerAffairs known to Defendants in carrying out the scheme alleged herein.

Emily Burke began a series of "cold call" solicitations to ICON's Director of eCommerce, Travis

Cox, emphasizing the number of "unique views" made by consumers to ConsumerAffairs.com

relating to ICON's products.

11. However, Consumer Affairs would not disclose its pricing, and to disclose such,

first tried to require ICON to sign a Non-Disclosure Agreement. By March of 2016, ICON had

not signed and Emily Burke responded by providing more analytics of relating to views of

ICON's brand "NordicTrack," showing 8,900 total views total with a purported average time of

23 minutes spent on ConsumerAffairs' "NordicTrack" review page. By May 2016, ICON had

still not signed the Non-Disclosure Agreement or responded further to ConsumerAffairs' tactics.

Emily Burke emailed again stating "[i]t has been two months and I think we could really help

your business." In July of 2016, Emily Burke emailed again stating "l thought I'd give you your

stats on your two brand profiles," and for NordicTrack listed "53K +views in the last year" and



for Pro-Form listed "24K +page views in the last year." Further, ConsumerAffairs.com tacitly

threatened that for search engines, ConsumerAffairs rated on page I for no less than seventy-five

(75) prominent search terms that directly related to ICON's products.

12. On July 27,2016, Travis Cox emailed back stating "[o]ur legal team won't sign

the NDA [Non-Disclosure Agreement] just to see pricing as they feel that shouldn't be a trade

secret."

13. On AugustS, 2016, ConsumerAffairs sent ICON a "Member Accreditation

Agreement" (the "MAA"), which as a courtesy (presumably) removed the exorbitant $9,000.00

setup fee and required a $3,000 per month fee for each month ConsumerAffairs' "services" were

provided. The MAA clearly provides that in contrast to non-paying companies, ConsumerAffairs

will remove al1 negative feedback disputed by the company if the consumer does not respond

within 5 days, the response is insufficient, the facts underlying the complaint are disputed, or the

dispute is "resolved." Further, that any SEO I Marketing Plan will not be implemented until

ICON's rating exceeds 3.5 stars. 1

14. However, if ICON did not sign its rating for NordicTrack and Pro-Form would

stay at the biased, manipulated, near one-star review given by ConsumerAffairs. For instance on

the ConsumerAffairs.com review page for NordicTrack, the super low rating is based on "45

ratings out of 222 reviews." The ConsumerAffairs.com review page for Pro-Form, again

depicting an even lower rating, is based on "55 ratings out of 58 reviews."

1 "SEO" stands for Search Engine Optimization, which generally speaking is the utilization of techniques and strategies to obtain a high ranking SERP, or Search Engine Page Placement.

Complaint and Jury Demand ICON v. ConsumerAffairs.com, Inc., eta!. Page 7


15. ConsumerAffairs represents and even touts its reviews as being the product of

independent expertise, stating it has verified "609,949 reviews," requires contact information "to

ensure our reviewers are real," uses "intelligent software that helps us maintain the integrity of

reviews" and "moderators read all reviews to verify quality and helpfulness."2

16. In reality, ConsumerAffairs utilizes its computer resources in order to puff the

reputation of those companies who pay for its services and to deliberately degrade the good will

and reputation of those who do not.

17. For instance, contrast ConsumerReports.org, a nonprofit organization touting over

6-million users. ConsumerReports.org makes its money from charging subscription fees of

consumers, engages in no outside advertising, and independently tests products utilizing

applicable industry experts. In stark contrast to ConsumerAffairs, the Pro-Form Pro 2000 and the

Nordic Track C 1650 receive a perfect score (85) and a near perfect score (83), ranking as the two

most recommended treadmi lis out of the folding treadmill category. YOWZA Fitness does not

even make the list.

18. Nor does YOWZA make the list under "budget" folding treadmills, where again

ICON takes the show at having the NordicTrack C970 Pro, the NordicTrack C990, the Pro-Form

Sport 7.5, and the Pro-Form Power 995i at 3rd 5 111 7111 and 151h place, respectively. Of the 20

treadmills in the market reviewed and ''recommended" by ConsumerReports.org, five (5) of

them, or 25% are ICON treadmills. None are from YOWZA Fitness.

2 https://www.consumeraffairs.com/health/nordic-track.html (accessed 10-24-20 16)



19. The difference between these sites and ConsumerAffairs exists because

ConsumerAffairs deliberately creates a biased, manipulated review system that not only favors

those who pay, but also disfavors those who do not.

20. For instance, as of the date of this Complaint Consumer Affairs lists ten ( 10)

different providers under the industry category of "Fitness Equipment." The sole "accredited"

provider, YOWZA Fitness, is rated at nearly 5 stars. When a person clicks to see the reviews for

YOWZA Fitness, the first review is dated July 12, 2016 and states "[t]he product is amazing and

it's the best equipment ever."

The second review is dated out of chronological order, April 8, 2016, and again is very positive.

The third review is dated October 20, 2016, and like the previous two, is out of chronological

order and is very positive. A consumer would have to scroll down the page roughly three times

to see a much less favorable review dated October 16, 2016 stating "I don't think I'd ever

recommend it."



21. Such cherry picking of reviews does not occur for those brands that do not pay,

and yet to obtain these manipulative advantages ConsumerAffairs requires ICON and other

brands to pay exorbitant setup and monthly fees.

22. During the course of communications with Burke, ICON felt as if it had no

choice, and asked for materials necessary to go forward. ICON felt like it had no choice because

of the negative posted review history, the impact of the lack of positive reviews and the bad

overall star rating, and because ConsumerAffairs.com does not allow for non-paying brands to

receive information about consumers who have posted reviews on their website in order to

resolve complaints posted by those consumers and request that star rates be adjusted.

Additionally, ICON was concerned that non-paying brands cannot have star ratings blocked if

the consumer does not respond to a company's request for more information, the dispute is

resolved privately or the factual basis for the complaint is not resolved.



23. Burke provided a form of "ConsumerAffairs Member Accreditation Agreement,"

with Consumers Unified as the contracting party from the ConsumerAffairs end. The terms of

that form call for Consumers Unified (not ConsumerAffairs, Incorporated) defined in the

contract form as "ConsumerAffairs" to provide, among other things, the ConsumerAffairs

services described above that Burke touted would transform ICON's poor star-rating image.

24. On information and belief, this form of contract is part of a new business model

incorporated in the ConsumerAffairs business by Carman after he acquired ConsumerAffairs and

formed Consumers United in 2010. The new business model is selling memberships to brands

like ICON to "transform" their review images. Carman has generally spoken about introducing

this business model in an interview with a Tulsa, Oklahoma newspaper. As alleged herein, the

negative manipulation and characterization of ratings by Consumer Affairs is designed to coerce

brands to pay the lucrative fees for ConsumerAffairs to transform their ConsumerAffairs ratings

and images.

25. Upon being informed of all the circumstances, ICON declined to enter the deal

because it did not believe that the coercive practices of Consumer Affairs were just.

26. The effect of Consumer Affairs' tactics is not just disparate from what other

review outfits have to say about ICON- it is intentionally damaging, leading customers to obtain

a biased opinion of ICON and its products. For instance, the following Google Search for

"NordicTrack Reviews" produces this on the first page of each search:

Top 222 Complaints and Reviews about Nordic Track https:JJWww.consumeraffalrs.com ) Fitness Equipment .,. * **** Rating: 1.2 -45votes I purchased the NordicTrack Incline Trainer x9i via Nordictrack.com on July 3, 2015. I paid for the . How do r know 1 can trust these reviews about Nordic Track?



27. The posting gives a very false, manipulated, and biased review of ICON. First, the

posting blatantly suggests that there are "222 Complaints and Reviews" that lead to a 1 star

rating. In reality, Consumer Affairs' rating is based on a bia'ied, untold subset of 45 reviews out

of 222 reviews:

CONSUMERAFFAIRS consumer News Consumer Resoon:es

a....,.,. ~s .. ~oo1 o1 m ..showrauog~

Nordic Track Home ) Fitness Eqoipme;lt

Consumer Complaints and Reviews

28. And when a consumer clicks on the "rating distribution" on the Consumer Affairs

website, there is no mention of the other 177 reviews, where the 45 selected came from, or why

such a biased, and misrepresentative subset of reviews were selected:

··-(f),:-\'~~~:-_·:_ :~!·:;~-::-:::·:·:~-~:~~~:~~-~:~;-~~~:'_.:~~-~-~~:-~:-.·~-~.;:·~: _t:~-~-~:~-_:=·-~~-~~-f-·2·_· ·~··~-~~~~9.~.~;@·~~4~.~~~~~:~.~-~~·~

Nonii<:T rae~< do

Complaint and Jury Demand

CONSUMERAFFAIRS

3~s

2starsl

- ... ~sro11o00oot .. mr-

ICON v. ConsumerAffairs.com, Inc., et al. Page 12

3

2

39


29. Consumer Affairs' misleading, biased, and manipulative practices have a real and

significant impact on ICON and other companies and brands. As stated in ConsumerAffairs' own

July 6, 2016 email, "[o]ur brand partners use our services for our SEO, positive brand sentiment

in SERP, utilization of Consumer Affairs platform to resolve issues/retain customers/engage and

ultimately acquire new customers that are further in buying [sic] funnel after reading that [sic]

engagement and reviews from existing customers."

30. As a conservative basis, ICON estimates that a total of 9,000 unique views for

NordicTrack and 4,500 unique views for Pro-Form take place each month on ConsumerAffairs'

website. ConsumerAffairs' click-to-conversion rate for each unique page view equates to 1,800

lost NordicTrack customers, and 900 lost Pro-Form customers, each month. ConsumerAffairs'

concerted efforts over just the last year have cost ICON no less than ten million, five hundred

and thirty thousand dollars ($1 0,530,000.00).

FIRST CLAIM FOR RELIEF (Commerce and Trade Violations - All Defendants)

31. Plaintiff realleges the allegations in paragraphs I to 30.

32. Plaintiff is a person which has suffered and continues to suffer ascertainable

losses of money as alleged in paragraph 30 as a substantial , direct and proximate result of the

Defendants', and each of them, past and ongoing willful use or employment of a method, act or

practice declared unlawful under Title 13 of the Utah Code, as amended.

33. Under the Unfair Practices Act, U.C.A. sections 13-5-1 et. seq., Defendants are

liable as follows:



(a) Under section 13-5-3(1) by engaging in discrimination of price to the

effect of lessening competition, and injuring, destroying, and preventing competition with other

persons who knowingly grant or receive the benefit of such discrimination or the customers of

either.

(b) Under section 13-5-3(3), by obtaining exorbitant setup fees and monthly

fees which are not supported by a service or good of value.

34. Under the Unfair Competition Act, U.C.A. sections 13-5a-101, et. seq.,

Defendants are liable as follows:

(a) Under section 13-5a-102(4) by engaging in unfair competition.

Specifically, through the above explained manipulations, misrepresentations, and biased

activities, Defendants have conducted an intentional business act, and continue to conduct such

acts, that are unlawful or fraudulent, as set forth specifically above, and which have led to the

material diminution of value of ICON's intellectual property.

(b) Under section I3-5a-102(4), by engaging in "malicious cyber activity" in

unlawfully utilizing computer resources to intimidate ICON other companies, to coerce ICON

and other companies, and/or by intentionally or recklessly intending to defraud or materially

cause damage or disruption to the computing resources of ICON and other companies, and the

consumers who rely upon them.

35. Under the Utah Consumer Sales Practices Act, U.C.A. sections 13-11-1 et. seq.,

the Legislature enacted certain provisions to protect consumers and to protect suppliers such as



ICON and others who in good faith comply with the provisions of the Act. Under the Act,

Defendants are liable as follows:

(a) Under section 13-11-4, by indicating as set forth above a sponsorship,

approval, performance characteristic, or other qualities of ICON products when in fact they have

not such a characteristic.

(b) Under section 13-11-4, by indicating as set forth above that ICON

products are of a lower standard, quality, grade, style, or model, when in fact it is not.

(c) Under section 13-ll-4, by indicating as set forth above that Defendants

have the sponsorship, approval, or affiliation with individuals, persons, and businesses that it

does not have.

(d) Under section 13-11-5, by engaging in as set forth above an act that

violates the Utah Consumers Sales Practices Act, wherein under the circumstances such acts

were unconscionable.

36. Under the Truth in Advertising Act, U.C.A. sections 13-lla-1 et. seq., Defendants

are liable as follows:

(a) Under section 13-lla-3, by causing as set forth above likely confusion or

misunderstanding as to the source, sponsorship, and approval of the goods of ICON and other

businesses.

(b) Under section 13-lla-3, by causing as set forth above likely confusion or

misunderstanding as to affiliation, connection, association with, or certification by ICON, or

other individuals, persons, and businesses that legitimately review ICON products.



(c) Under section 13-lla-3, by representing, as set forth above, that ICON's

goods and services are of a lower standard, quality, or grade, when in fact they are not.

(d) Under section 13-lla-3, by disparaging, as set forth above, ICON's goods,

services, and business through the use of false and/or misleading representations of fact.

(e) Under section 13-lla-3, by representing, as set forth above, that

Defendants are providing an independent assessment and comparison of goods or businesses

within the fitness equipment industry, including ICON, when in fact Defendants' assessments are

not independent.

(f) Under section 13-1 1 a-3, by making, as set forth above, a comparison

among goods within the fitness equipment industry, including ICON's, and doing so in a manner

that creates confusion and/or misunderstanding as to the actual qualities of the goods being

compared.

37. Defendants, and each of them, have also conspired together and aided and assisted

one another in the commission of the unlawful practices alleged in paragraphs 31 thru 36.

38. Under the Truth in Advertising Act, section 13-11 a-4, Plaintiff has a right to a

private cause of action, is entitled to an order from the Court enjoining Defendants' illegal

practices, is entitled to recover its actual damages, costs, and attorney's fees, and is entitled to an

order from the Court ordering Defendants promulgate sufficient corrective advertising in the

same distribution, frequency, and veracity in which Defendants have violated the Act.

39. Under the Unfair Competition Act, section 13-Sa-103, ICON has the right to

recover its actual damages, costs, attorney's fees, and punitive damages.



40. Under the Unfair Practices Act, section 13-15-14, ICON has the right to recover

its actual damages, treble damages, and all court costs, and is entitled to appropriate injunctive

relief against Defendants from continuing the above explained wrongful conduct.

41. As a result of Defendants' above wrongful conduct, Plaintiff has been damaged as

set forth in paragraph 30 above. Plaintiff reserves the right to move for and allege punitive

damages as provided for under the Utah Rules of Civil Procedure.

SECOND CLAIM FOR RELIEF (Intentional Interference with Prospective Economic Relations- All Defendants)

42. Plaintiff realleges the allegations in paragraphs 1 to 41.

43. Plaintiff had and has a reasonable prospective economic relationship with

potential and interested consumers who have clicked and continue to click on ConsumerAffairs'

review page for NordicTrack and Pro-Form, as established by Consumer's online click

conversion rate track record. The Defendants and each of them, as third parties have interfered

and continue to interfere with that prospective economic relationship by the improper means of

misrepresentation and deception for the improper purpose of negatively impacting Plaintiffs'

products as set out above.

44. Defendants, and each of them, have also conspired together and aided and assisted

one another in the intentional interference.

45. As alleged in paragraph 30, Plaintiff has been and continues to be damaged as a

substantial, direct and proximate result of the Defendants, and each of them, having intentionally

interfered with those prospective economic relationships. Plaintiff reserves the right to move for

and allege punitive damages.



THIRD CLAIM FOR RELIEF (Federal RICO- All Defendants)


47. Pursuant to 18 U.S.C. § 1964(c), Plaintiff as a legal entity is a person which has

been injured in its business or property by reason of a violation of 18 U.S.C. § 1962(c) and/or

(d).

48. The Defendants, and each of them, are persons which have been associated with

the following alternative enterprises:

(a) All Defendants in association with each other (as to the claims against all

Defendants);

(b) All Defendants in association with each other and Burke (as to the claims

against all Defendants);

(c) ConsumerAffairs (as to the claims against Cannan and Consumers

United);

(d) Consumers United (as to the claims against Carman and

Consumer Affairs);

(e) ConsumerAffairs and Burke (as to the claims against Carman and

Consumers United);

(f) Consumers United and Burke (as to the claims against all Defendants);

(g) ConsumerAffairs in association with the unwitting internet consumers

which have been the object of the Defendants' deceptive scheme set out above (as to the claims

aoainst all Defendants)· 0 ,



(h) Consumers United in association with the unwitting internet consumers

which have been the object of the Defendants' deceptive scheme set out above (as to the claims

against all Defendants); and/or

(i) ConsumerAffairs and Consumers United in association with the unwitting

internet consumers which have been the object of the Defendants' deceptive scheme set out

above (as to the claims against all Defendants).

49. The activities of the above enterprises have affected interstate commerce between

Utah, where Plaintiff and its officers and employees were located, and Tulsa Oklahoma where

the Defendants and Burke were headquartered, and across the nation regarding thousands of

impacted online consumers.

50. The Defendants, and each of them, conducted (operated and managed) the above

alternative enterprises' affairs through a pattern of racketeering activities. The racketeering

activities defined by 18 USC §1961 (1) (A) and (B) include:

(a) The Defendants, and each of them, by design and through their agents for

their own benefit have repeatedly engaged in knowing participation in multiple predicate acts of

internet wire fraud in violation of 18 U.S.C. § 1343 by having devised or intending to devise the

above-alleged scheme or artifice to defraud, or for obtaining money by means of false or

fraudulent pretenses, representations as alleged in detail in paragraphs 1-24 above. Those

activities substantially involved and/or continue to involve use of interstate wires via the internet

for purposes of the email correspondence set out above, the ConsumerAffairs.com internet

review site set forth in detail in paragraphs 1-24 above as to Consumer Cellular and/or its



competitor YOWZA Fitness, and ConsumerAffairs' positioning and word content for results of

internet consumers searches containing or migrating to "NordicTrack," "Pro-Form,"

"NordicTrack Reviews," or "Pro-Form Reviews."

(b) Defendants, and each of them, have also engaged in acts and/or threats

constituting racketeering activities involving conduct alleged in paragraphs 1 to 30 and 50(a)

chargeable as multiple attempts at theft by extortion proscribed by U.C.A. § 76-6-412 (criminal

attempt involving a 2nd Degree Felony), and U.C.A. § 76-6-406 (extortion, a 2nd Degree Felony),

punishable also by treble damages, costs, and attorney's fees. See U.C.A. § 76-6-412(2).

51. Defendants by design and through their agents for their own benefit have

repeatedly taken substantial steps to compel or induce ICON to deliver money to Consumers

United for a Consumer Affairs accredited membership by instilling in the ICON a fear that, if the

money is not so delivered, then ConsumerAffairs will:

(a). wrongfully cause damage to ICON's property (goodwill, reputation, and

monetary income) by continuing to manipulate the ConsumerAffairs review pages to negatively

impact Consumer Cellular as alleged in paragraphs 1 to 30;

(b). engage in conduct constituting the ongoing crime of federal wire fraud as

alleged in paragraphs 1 to 30 and 50(a); and/or

(c). expose ICON to deceptive publication of facts tending to subject ICON to

contempt or ridicule as alleged in paragraphs 1 to 30.

52. The multiple acts of mail and wire fraud constitute a pattern of racketeering in

that theschemes involved and continue to involve repetitive acts of misrepresentation and



deception as to both ICON and its competitor YOWZA Fitness published repeatedly (daily) to

the thousands of unique view ConsumerAffairs.com internet review page consumers each month

as tracked by ConsumerAffairs, and published repeatedly in internet search engine consumer

search results involving ICON and/or YOWZA Fitness. Added to that pattern are the related

above-alleged repeated attempts of unlawful extortion of ICON under Utah law.

53. This pattern of racketeering has been continuous for well over a year and

continues unabated.

54. Defendants, and each of them, have agreed and conspired with one another and

with Emily Burke as co-conspirator to violate 18 U.S.C. § 1962(c), as alleged above.

55. As alleged in paragraph 30, Plaintiff has been and continues to be directly and

proximately injured in its business and/or property by reason of the above-alleged pattern of

predicate acts of racketeering. Plaintiff is entitled to treble damages and reasonable attorney fees

under 18 U.S.C. § l964(c).

FOURTH CLAIM FOR RELIEF (Defamation- All Defendants)


57. The Defendants have made and continue to make false and defamatory

representations regarding Plaintiff as set forth in paragraphs 1-30 above. The defamatory

statements have been and continue to be published to thousands of internet consumer who do

internet searches for or that take them to "NordicTrack," "Pro-Form," "NordicTrack Reviews,"

or "Pro-Form Reviews" or who click on the ConsumerAffairs.com review page for NordicTrack

and/or Pro-Form.



58. Defendants, and each of them, have also conspired together and materially aided

and assisted one another in these past and ongoing defamatory statements.

59. Plaintiff has been specially damaged by the false and defamatory statement

publications as alleged in paragraph 30.

JURY DEMAND

Plaintiff demands a trial by jury.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prayers for judgment against Defendants, and each of them, as

follows:

(I) For monetary damages on all claims to be proven at trial, but currently estimated

at no less than $1 0,530,000.00;

(2) For treble damages;

(3) For equitable, injunctive, and declaratory relief as the court sees fit;

( 4) For reasonable attorney fees and costs;

(5) For all costs and disbursements related to this action.

(6) For such other relief as the Court deems just and equitable, including without

limitation that Defendants cease their actionable practices and reserving the right to amend to

allege punitive damages on Plaintiffs claims to the extent not precluded by law.

DATED this I st day of November, 2016.


BEARNSON & CALDWELL, LLC

Is/ Brad H. Beamson Brad H. Bearnson Attomeysfor Plaint(ff


Brad H. Bearnson (#3633) Wayne K. Caldwell (#9466) Aaron K. Bergman (# 1314 7) BEARNSON & CALDWELL, LLC 399 Nm1h Main, Suite 270 Logan, Utah 84321 Telephone: (435)752-6300 Facsimile: (435)752-630 I Email: [email protected]; [email protected]; and abergman@bearnson law .com For emails, please cc: [email protected]

AttorneysfiJr Plainl{ff

IN THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT COUNTYOFCACH~STATEOFUTAH


Plaintiff,

vs.

CONSUMERAFF AIRS.COM, INC., a Nevada corporation; CONSUMERS UNIFIED, LLC, a Nevada limited liability company; and DAVID ZACHARY CARMAN, an individual,

Defendants.

SUMMONS

Civil No. 160100397

Judge: Brian Cannell

THE STATE OF UTAH TO THE ABOVE-NAMED DEFENDANT:

David Z. Carman a/k/a David Zachary Carman 1131 East 201

h Street Tulsa, Oklahoma 74120

A lawsuit has been filed against you.

Summons ICON v. ConsumerAffairs.com, Inc., et al. Page 1


You are hereby summoned and required to file an Answer in writing to the attached

Complaint and Jwy Demand with the Clerk of the above-entitled Cour1, whose address is First

Judicial District Court, 135 North I 00 West, Logan, Utah, 84321 , and to serve upon or mail to

Brad H. Bearnson, BEARNSON & CALDWELL, LLC, Plaintiffs' attorney, 399 North Main

Street, Suite 270, Logan, Utah, 84321, a copy of said Answer, within thirty (30) days after

service of this Summons upon you.

If you fail to do so, judgment will be taken against you for the relief demanded in said

Complaint and Jury Demand, which has been filed with the Clerk of the said Court and a copy of

which is hereto annexed and herewith served upon you.

DATED this 4th day ofNovember, 2016.

Summons ICON v. ConsumerAffairs.com, Inc., et al. Page2


Is! Brad H. Bearnson Brad H. Bearnson Allorneys.for Plaint([(


Civil Return

SHERIFF VIC REGALADO

TULSA COUNTY SHERIFFS OFFICE 500 S. DENVER

TULSA, OK. 74103-(91 8) 596-5601 Fax: (918) 596-5697

Plaintiff: ICON HEALTH & FITNESS INC

Case Number: 160100397 UT

Defendant: CARMEN, DAVID ZACHARY

Person To Serve: CARMEN, DAVID

Date OfRetum: Tuesday, November 15,2016

Type Of Civil Paper: SUMMONS

Date Served: 11/14/2016 1145

Evicted On Dateffime:

Who Served: CARMEN, DAVID

Address: 601 S BOULDER

Address: TULSA, OK. 74103

I PERSONAL

Entry Date: 11/10/2016

Service Type:

SHERIFF VIC REGALADO TULSA COUNTY SHERIFFS OFFICE

1(£R~ SHA VNEY, RICHARD

Printed: November 15, 2016/ 7:06:37 04:!2


Brad H. Bearnson (#3633) Wayne K. Caldwell (#9466) Aaron K. Bergman (#13147) BEARNSON & CALDWELL, LLC 399 North Main, Suite 270 Logan, Utah 84321 Telephone: (435)752-6300 Facsimile: ( 435)752-630 1 Email: bbearnson @bearnsonlaw.com; weald well @bearnsonlaw.com; and abergman @bearnsonlaw .com For emails, please cc: [email protected]

Attorneysfor Plaintifl

IN THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT COUNTY OF CACHE, STATE OF UTAH


Plaintiff,

vs.


Defendants.

SUMMONS

Civil No. 160100397



CONSUMERS UNIFIED, LLC c/o David Z. Carman, Manager 1131 E 20th Street Tulsa, Oklahoma 74120



The Corporation Trust Company of Nevada 701 S Carson Street, Suite 200 Carson City, Nevada 89701



Complaint and Jury Demand with the Clerk of the above-entitled Court, whose address is First

Judicial District Court, 135 North 100 West, Logan, Utah, 84321, and to serve upon or mail to


Street, Suite 270, Logan, Utah, 84321, a copy of said Answer, within thirty (30) days after



Complaint and Jury Demmul, which has been filed with the Clerk of the said Court and a copy of


DATED this 4111 day of November, 2016.



Is/ Brad H. Beamson Brad H. Bearnson Attomeysfor Plaint(ff


Civil Retu,rn •. r


500 S. DENVER TULSA, OK. 74103-

(918) 596-560 1 Fax: (918) 596-5697

Plaintiff: ICON HEALTH & FITNESS INC


Defendant: CONSUMER UNIFIED L,

Person To Serve: CONSUMER UNIFIED LLC

Date Of Return: Tuesday, November 15, 2016


Date Served: 11114/2016 1145

Evicted On Dateffime:

Who Served: DAVID CARMEN

Address: 601 S BOULDER Address: TULSA, OK. 74120

I PERSONAL

Entry Date: 11/10/2016

Service Type:


f(£H~ SHA VNEY, RICHARD

Printed: November 15, 2016 I 7:06:37 0422


.. --~

Brad H. Bearnson (#3633) Wayne K. Caldwell (#9466) Aaron K. Bergman (# 1314 7) BEARNSON & CALDWELL, LLC 399 North Main, Suite 270 Logan, Utah 84321 Telephone: ( 435)752-6300 Facsimile: ( 435)752-630 1 Email: [email protected]; [email protected]; and abergman@bearnson law .com For emails, please cc: [email protected]

Attorneys jbr Plaintijf

IN Tl-IE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT COUNTY OF CACHE, STATE OF UTAH


Plaintiff,

vs.


Defendants.

SUMMONS

Civil No. 160100397



CONSUMERAFFAIRS.COM, INC. c/o David Z. Carman, President 1131 E 20th Street Tulsa, Oklahoma 74120


Summons ICON v. ConsumerAffairs.com, Inc., et al. Page I

The Corporation Trust Company ofNevada 70 I S Carson Street, Suite 200 Carson City, Nevada 89701



Complaint and .Jw:v Demand with the Clerk of the abovewentitled Court, whose address is First

Judicial District Court, 135 North I 00 West, Logan, Utah, 84321, and to serve upon or mail to


Street, Suite 270, Logan, Utah, 8432 I, a copy of said Answer, within thirty (30) days after



Complaint and .Jwy Demand, which has been filed with the Clerk of the said Court and a copy of


DATED this 4111 day ofNovember, 2016.

Summons ICON v. ConsumerAffairs.com, Inc., et al. Page2


!\/Brad H. Bearnson Brad H. Bearnson Atlorneysfor Plaintiff

~:: .,,,:


Civil Return

SHERIFF VIC REGALADO TULSACOUNTYSHE~SOFfiCE

500 S. DENVER TULSA, OK. 74103~

(918) 596~5601

Plaintiff: ICON HEALTH & FITNESS


Defendant: CONSUMERAFFAIRS,

Person To Serve: CONSUMERAFF AIRS. COM INC

Date Of Return: Tuesday, November 15, 2016


Date Served: 11/14/2016 1145

Evicted On Date/Time:

Who Served: DAVID CARMEN

Address: 601 S BOULDER Address: TULSA, OK. 74103

I PERSONAL Service Type: CORPORATE


Fax: (918) 596-5697

Entry Date: 11/1012016

i<~~ SHA VNEY, RICHARD

Printed: November 15, 2016/ 7:06:37 R.·pM __ Cil·tlN.·~:,>~ tlarR£>tum ()~ 7<-·.w 04:!.2

····-··~·-···~-..... --~~----.. ~~~-·~~-"······~·····-·-···-~~--~-~-~ .. ··-.· =·~~~-~-~-~-~----~-~--·-.. -~-~------~-~-~-~"···~~-~~-----··---·~·-·~--·-~··--·~- . -·--.----··--····---·-·"·'···~····=-.J


4826-2897-8191.1

Randy L. Dryer (924) Richard Mrazik (10623) PARSONS BEHLE & LATIMER 201 South Main Street, Suite 1800 Salt Lake City, UT 84111 Telephone: 801-532-1234 Facsimile: 801-536-6111 [email protected] [email protected] Attorneys for Defendants

IN THE FIRST JUDICIAL DISTRICT COURT

CACHE COUNTY, STATE OF UTAH

ICON HEALTH & FITNESS, INC., a Delaware corporation, Plaintiff, vs. CONSUMERAFFAIRS.COM, INC., a Nevada corporation, CONSUMERS UNIFIED, LLC, a Nevada limited liability company; and DAVID ZACHARY CARMAN, an individual Defendants.

NOTICE OF REMOVAL OF ACTION TO FEDERAL COURT

Case No. 160100397

Honorable Brian Cannell

TO THE CLERK AND HONORABLE JUDGES OF THE DISTRICT COURT OF THE

FIRST JUDICIAL DISTRICT IN AND FOR CACHE COUNTY, STATE OF UTAH:

PLEASE TAKE NOTICE that a Notice of Removal of this action was filed in the United

States District Court for the District of Utah on December 13, 2016, under Case No. 1:16-cv-

00168-DBP. Under 28 U.S.C. § 1446(d), a copy of the Notice of Removal is attached as Exhibit

1.


4826-2897-8191.1 2




4826-2897-8191.1 3


I hereby certify that on December 13, 2016, I caused a true and correct copy of the

foregoing NOTICE OF REMOVAL OF ACTION TO FEDERAL COURT to be filed via the

Court’s electronic filing system, which served all counsel of record.



4826-2897-8191.1

EXHIBIT 1


Randy L. Dryer (924) Richard Mrazik (10623) PARSONS BEHLE & LATIMER 201 South Main Street, Suite 1800 Salt Lake City, UT 84111 Telephone: 801-532-1234 Facsimile: 801-536-6111 [email protected] [email protected] [email protected] Attorneys for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, NORTHERN DIVISION ICON HEALTH & FITNESS, INC., a Delaware corporation, Plaintiff, vs. CONSUMERAFFAIRS.COM, INC., a Nevada corporation, CONSUMERS UNIFIED, LLC, a Nevada limited liability company; and DAVID ZACHARY CARMAN, an individual Defendants.

NOTICE OF REMOVAL Civil No. 1:16-cv-00168-DBP Magistrate Judge Dustin B. Pead

Pursuant to 28 U.S.C. §§ 1441(a) and 1446, and in accordance with 28 U.S.C. § 1331 and

1367, Defendants ConsumerAffairs.com, Inc. (“ConsumerAffairs”), Consumers Unified, LLC

(“Consumers Unified”), and David Zachariah Carman (“Carman”) (sued incorrectly herein as

“David Zachary Carman”) (collectively, “Defendants”) hereby remove this civil action, pending

in the District Court of the First Judicial District, Cache County, Utah, to the United States

District Court for the District of Utah, Northern Division. In support of this Notice of Removal,

Defendants state as follows:


2

INTRODUCTION

1. Plaintiff Icon Health & Fitness, Inc. (“Plaintiff”) commenced this action by filing

a Complaint in the District Court of the First Judicial District, Cache County, Utah, on or about

November 4, 2016, which is docketed as Civil No. 160100397. See Exhibit 1.

2. Plaintiff served all Defendants personally on November 14, 2016.

3. This Notice of Removal is being filed on December 13, 2016, which is within

thirty days of November 14, 2016. See 28 U.S.C. § 1446(b). Therefore, this notice of removal is

timely filed within the time required by 28 U.S.C. § 1446(b).

4. Pursuant to 28 U.S.C. § 1446(a), copies of all process and pleadings that have

been received by Defendants, together with other filings on file with the District Court of the

First Judicial District, are filed herewith. See Exhibit 2 (Summons to Carman); Exhibit 3

(Summons to Consumers Unified); and Exhibit 4 (Summons to ConsumerAffairs).

PLAINTIFF’S CLAIMS

5. Plaintiff claims to be the “largest producer and manufacturer of exercise

equipment in the world.” Complaint (“Compl.”) ¶ 2.

6. Defendants own and/or operate a website (the “Website”) on which are posted

product and brand reviews written by consumers, and they publish an “Overall Satisfaction

Rating” for companies reviewed on the Website that ranges from 1 to 5 stars based on star

ratings submitted by consumers. See Compl. ¶ 5.

7. According to Plaintiff, although Defendants purport to operate “an independent,

trustworthy Web-based consumer news and resource center,” Compl. ¶3, Defendants

“discriminatorily post reviews and [star] ratings based solely on whether customers have paid

fees.” Id. ¶ 1.


3

8. Specifically, Plaintiff accuses Defendants of not posting and removing “legitimate

positive reviews” of Plaintiff’s business in order to lower its star rating and coerce it to pay fees

to Defendants. Id. ¶ 9.

9. In addition, according to Plaintiff, Defendants’ “actively solicit[] and post[]

positive reviews for paying members only.” Id. ¶ 8. Defendants also “cherry-pick” positive

reviews for companies that pay “exorbitant setup and monthly fees,” positioning those reviews at

the top of its Website in the relevant industry category, while not doing the same for Plaintiff.

Id. ¶¶ 20-21.

10. Further, on the Website pages of non-paying companies, according to Plaintiff,

consumers are greeted with screens that direct them away from those companies and to the pages

of companies who have paid Defendants to appear on the Website as a “top alternative” or as

“consumer recommended.” Id. ¶ 8.

11. Plaintiff alleges that Defendants gave it “no choice” but to participate in

Defendants’ fee-paying scheme because of the number of negative reviews posted about Plaintiff

on the Website, the lack of positive reviews, and because Defendants prevented it from

responding to consumer complaints and having its star rating adjusted. Id. ¶ 22.

12. Ultimately, Plaintiff declined to enter into any agreement to pay fees to

Defendants. Id. ¶ 25. As a result, Plaintiff alleges, it was damaged by Defendants’ “concerted

scheme of biased and manipulative review posting [on the Website] related to ICON and its

products.” Id. ¶ 1.

13. Based on this common set of core allegations, Plaintiff asserts four claims for

relief against all Defendants: (1) for unfair trade practices under Utah’s Unfair Practices Act,

Consumer Sales Practices Act, Truth in Advertising Act, and Unfair Competition Act; (2) for


4

intentional interference with prospective economic relations; (3) for violations of the federal

Racketeer Influenced and Corrupt Organizations Act (“RICO”) under 18 U.S.C. §§ 1961, 1962,

and 1964; and (4) for defamation. Plaintiff seeks both compensatory and punitive damages.

GROUNDS FOR REMOVAL

14. The present lawsuit is removable from state court pursuant to 28 U.S.C. §§ 1331

(federal question jurisdiction), 1367 (supplemental jurisdiction), and 1441 (removal of civil

actions).

15. This Court has original jurisdiction over Plaintiff’s Third Claim for Relief for

RICO violations under 18 U.S.C. §§ 1961, 1962, and 1964. See 28 U.S.C. § 1331 (“The district

courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or

treaties of the United States.”)

16. Plaintiff’s First, Second, and Fourth Claims for Relief—for unfair trade

practices, intentional interference with prospective economic relations, and defamation—are

state law claims arising from the same common set of core allegations as Plaintiff’s RICO claim.

Further, Plaintiff’s First, Second, and Fourth Claims for Relief seek damages for the same

allegedly wrongful conduct as Plaintiff’s RICO claim. Accordingly, this Court has supplemental

jurisdiction over Plaintiff’s First, Second, and Fourth Claims for Relief because they are so

related to Plaintiff’s RICO claim that they form part of the same case or controversy. See 28

U.S.C. 1367(a).

17. There are no other claims asserted against any other Defendants named in

Plaintiff’s Complaint.


5

JOINDER AND NOTICE

18. Undersigned counsel represents all Defendants joined and served in this matter,

and all Defendants hereby join in this Notice of Removal.

19. The United States District Court for the District of Utah, Northern Division, is the

appropriate place for a case removed from the District Court of the First Judicial District, Cache

County, Utah. 28 U.S.C. § 105(b)(4).

20. Pursuant to 28 U.S.C. § 1446(d), all adverse parties are being provided with this

Notice of Removal, and a copy of this Notice of Removal has been filed with the Clerk of the

District Court of the First Judicial District, Cache County, Utah. See Exhibit 5.

WHEREFORE, notice is given that this action is removed from the District Court of the

First Judicial District, Cache County, Utah, to the United States District Court for the District of

Utah, Northern Division.




6


I hereby certify that on December 13, 2016, I electronically filed the foregoing NOTICE

OF REMOVAL with the Clerk of the Court using the CM/ECF system, and I served a copy of

the foregoing upon the following via prepaid, first class United States Mail.

Brad H. Bearnson Wayne K. Caldwell Aaron K. Bergman BEARNSON & CALDWELL. LLC 399 North Main, Suite 270 Logan, Utah 84321 Telephone: (435)752-6300 Facsimile: (435)752-6301 [email protected] [email protected] [email protected] [email protected]

_/s/ Richard E. Mrazik_________________


JS 44 (Rev. 11/15) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

1 U.S. Government 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4

of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC 130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust

& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce152 Recovery of Defaulted Liability 368 Asbestos Personal 840 Trademark 460 Deportation

Student Loans 340 Marine Injury Product 470 Racketeer Influenced and (Excludes Veterans) 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizations

153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (1395ff) 480 Consumer Credit of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud Act 862 Black Lung (923) 490 Cable/Sat TV

160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending 720 Labor/Management 863 DIWC/DIWW (405(g)) 850 Securities/Commodities/190 Other Contract Product Liability 380 Other Personal Relations 864 SSID Title XVI Exchange195 Contract Product Liability 360 Other Personal Property Damage 740 Railway Labor Act 865 RSI (405(g)) 890 Other Statutory Actions196 Franchise Injury 385 Property Damage 751 Family and Medical 891 Agricultural Acts

362 Personal Injury - Product Liability Leave Act 893 Environmental Matters Medical Malpractice 790 Other Labor Litigation 895 Freedom of Information

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 791 Employee Retirement FEDERAL TAX SUITS Act210 Land Condemnation 440 Other Civil Rights Habeas Corpus: Income Security Act 870 Taxes (U.S. Plaintiff 896 Arbitration220 Foreclosure 441 Voting 463 Alien Detainee or Defendant) 899 Administrative Procedure230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRS—Third Party Act/Review or Appeal of240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision245 Tort Product Liability Accommodations 530 General 950 Constitutionality of290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION State Statutes

Employment Other: 462 Naturalization Application446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration

Other 550 Civil Rights Actions448 Education 555 Prison Condition

560 Civil Detainee - Conditions of Confinement

V. ORIGIN (Place an “X” in One Box Only)1 Original

Proceeding2 Removed from

State Court 3 Remanded from

Appellate Court4 Reinstated or

Reopened 5 Transferred from

Another District(specify)

6 MultidistrictLitigation

VI. CAUSE OF ACTIONCite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED IN COMPLAINT:

CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: Yes No

VIII. RELATED CASE(S) IF ANY (See instructions):

JUDGE DOCKET NUMBERDATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

ICON HEALTH & FITNESS, INC. CONSUMERAFFAIRS.COM, INC., CONSUMERSUNIFIED, LLC, DAVID ZACHARY CARMAN

Cache County

Brad H. Bearnson, Wayne K. Caldwell, Aaron K. Bergman, BEARNSON& CALDWELL, LLC, 399 North Main, Suite 270, Logan, UT 84321(435) 752-6300

Randy L. Dryer, Richard E. Mrazik, PARSONS BEHLE & LATIMER,201 So. Main St., #1800, Salt Lake City, UT 84111 (801) 532-1234

18 U.S.C. 1962(c)

Violation of the federal Racketeer Influenced and Corrupt Organizations Act

10,530,000.00

12/13/2016 /s/ Richard E. Mrazik


Documents

Randy L. Dryer (924) Richard Mrazik (10623) PARSONS …online.wsj.com/public/resources/documents/2016_1214_consumer...Case 1:16-cv-00168-DBP Document 2 Filed 12/13 ... an innovation