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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ETTA CALHOUN, ON BEHALF OF HERSELF AND


ALL OTHER PERSONS SIMILARLY SITUATED, Civil Case No: 18-01022 RCM

Plaintiff,

v.

INVENTION SUBMISSION CORPORATION, D/B/A


INVENTHELP, TECHNOSYSTEMS CONSOLIDATED
CORP., TECHNOSYSTEMS SERVICE CORP.,
WESTERN INVENTION SUBMISSION CORP.,
UNIVERSAL PAYMENT CORPORATION,
INTROMARK INCORPORATED, INNOVATION
CREDIT CORP., ROBERT J. SUSA, THOMAS FROST,
P.A., THOMAS FROST, LAW OFFICE OF KYLE
FLETCHER, P.C., KYLE A. FLETCHER, CROSSLEY
& STEVENSON, CROSSLEY PATENT LAW,
KAUFHOLD & DIX, ABOVE BOARD DRAFTING,
INC., JOHN DOE COMPANIES 1-10, JOHN DOE
INDIVIDUALS 1-10,

Defendants.

MEMORANDUM OF LAW IN OPPOSITION TO


INVENTHELP DEFENDANTS’ OBJECTIONS

OXMAN LAW GROUP, PLLC


Attorneys for Plaintiffs
120 Bloomingdale Road, Suite 100
White Plains, New York 10605
(914) 422-3900
(914) 422-3636 (Fax)
TABLE OF CONTENTS

Page Nos.

TABLE OF AUTHORITIES......................................................................................................................ii

PRELIMINARY STATEMENT................................................................................................................1

ARGUMENT..............................................................................................................................................4

I. The Amended Complaint States Claims Pursuant To The AIPA.............................................4

A. The Amended Complaint Alleges False Disclosure Pursuant to the AIPA...............5

B. The Amended Complaint Alleges False Statements Pursuant to the AIPA................ 6

C. The AIPA Claims Are Timely................................................................................... 9

II. The Amended Complaint States Claims Pursuant To The TCP A.......................................11

III. The Amended Complaint States Pleads Fraud and Negligent Misrepresentation..................12

IV. The Amended Complaint Pleads Breach of Contract........................................................... 16

V. The InventHelp Defendant’s Motion to Strike is Frivolous................................................. 17

CONCLUSION 18
TABLE OF AUTHORITIES

Cases Page Nos.

Boardakan Rest. LLC v. Gordon Group Holdings, LLC,


2015 WL 4597970, *9 (E.D.P.A. 2015)............................................................................................... 12

DeTello v. Dean Witter Reynolds, Inc.,


410 F.3d 1275, 1288 (ll111 Cir, 2005)................................................................................................... 11

Dungee v. Davison Design & Dev’t, Inc.,


Civ. Action No. 10-325 GMS (D. Del..2010)................................................................................. 5, 11

Fine v. Checcio, D.D.S.,


582 Pa. 253, 275 (Pa. 2005).................................................................................................................. 11

Hemphill v. Nationstar Mortgage LLC,


2018 WL 4929864, *10(E.D.Pa. 2018)................................................................................................ 15

Niiaryee v. Davidson Design & Dev't,


2018 WL 1072439, *3-4....................................................................................................................... 10

Toy v. Metro. Life Ins. Co.,


928 A.2d 186, 208 (Pa. 2007)............................................................................................................... 15

Wynn v. Davidson Design &Dev’t, Inc.,


2010 WL 891905, *7-8 (S.D.Ala. 2010).................................................................................................5

Youndt v. First Nat 7 Bank of Port Allegany,


868 A.2d 539, 546 (Pa.Super. 2005)..................................................................................................... 13

Statutes Page Nos.

American Inventors Protection Act of 1999 (“AIPA”), 35 U.S.C. § 297........................................... 1,4,5

Statute of Limitations, 28 U.S.C. § 1658(a)................................................................................................9


Plaintiff Etta Calhoun submits the instant memorandum of law in opposition to the

InventHelp Defendants’ objections to Magistrate Judge Mitchell’s January 3, 2019 Report and

Recommendation (ECF 48) (“Report and Recommendation”). Plaintiff respectfully requests that

this Court overrule the InventHelp Defendants’ objections.1

Plaintiff adopts and incorporates by reference her October 24, 2018 submissions in

opposition to the InventHelp Defendants’ motion to dismiss (ECF 36) in their entirety.

PRELIMINARY STATEMENT

Magistrate Judge Mitchell’s well-reasoned and thorough Report and Recommendation

leaves no stone unturned, conducting an in-depth analysis of all pertinent issues. As such,

Plaintiff respectfully requests that this Court overrule the InventHelp Defendants’ objections.

The gravamen of this case is the InventHelp Defendants’ deliberate and blatant violation

of the American Inventors Protection Act of 1999 (“AIPA”), 35 U.S.C. § 297. As detailed in the

Amended Complaint, InventHelp, and its attached “finance company,” Universal Payment

Corporation, are a scam.

The Amended Complaint’s allegations of malfeasance that are highlighted in this

memorandum of law are just a sampling of the shocking fraud in which InventHelp is engaged.

Put simply - this is not a case about a disappointed inventor’s one-in-a-million shot at success;

this is a case about a company built completely upon lies and fraud, with absolutely no

legitimacy whatsoever.

1 Abbreviations used herein are those defined in Plaintiff s October 24, 2018 Memorandum in
Opposition to the InventHelp Defendants’ motion to dismiss. (ECF 36).
The InventHelp Defendants’ primary arguments relating to the AIPA and tort claims -

that the Amended Complaint fails to allege false statements, that those statements are immaterial,

and that it was unreasonable for Plaintiff to rely upon them - are laughable. (InventHelp Dels.’

Objections atpp. 5, 13, 14).

First and foremost, the Amended Complaint alleges that all of the InventHelp

Defendants’ AIPA-mandated disclosures, be they on behalf of InventHelp, Western InventHelp,,

or any other entity, are outright lies, 24, 61-62, 63, 94-99, 123, 133(a), 145, 146, 178, 179,

194). Given that these are federally-mandated disclosures, they are ipso facto material and

Plaintiff was entitled to rely upon them as a matter of law. Importantly, because the false

disclosures are contained in the very same contracts that contain InventHelp’s disclaimers and

integration clauses, those disclaimers do not shield InventHelp.

Additionally, the Amended Complaint provides a detailed recitation of the InventHelp

Defendants’ other false statements - including dates of telephone calls and meetings, the names

of the various InventHelp representatives, content of voluminous false statements and omissions,

and dated correspondence containing additional misstatements. 52, 53, 55, 56, 63, 67, 69,

72, 73, 81, 83, 84, 111, 112, 113, 114,117, 178, 179, 180-188).

The Amended Complaint also alleges that InventHelp’s business platform and sales pitch

on the whole are fraudulent, by virtue of fictional company lists concocted by InventHelp to

create the false impression that InventHelp has “relationships” with “companies looking for new

ideas.” (^[ 90, 91, 92, 100, 101, 102, 103, 109, 179, 182). In fact, not only are these companies

oftentimes works of pure fiction, InventHelp also has no mechanism to follow up with any

company that may express interest in an idea - companies on InventHelp’s “Data Bank” and

“database” lists (to the extent some of the entities actually exist) are given no means to contact

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InventHelp other than the 1-800 telephone number on InventHelp’s late night television

commercials, and those calls go unretumed. 102-03).

InventHelp’s business model on the whole is built upon fraudulent inducement. The

introductory step - the less expensive Basic Information Package - is a con: “although

purporting to be an end in itself, in truth and in fact the Basic Information Package is part of

Defendants’ ploy to convince consumers that their inventions are marketable, and con them into

signing contracts for the more expensive Submission Services.” 81). Indeed, Ms. Calhoun

was repeatedly telephoned by InventHelp representative Joy Hinson, purportedly to arrange a

meeting to go over her Basic Information Package results; a meeting ultimately took place, and

its true purpose and result was to pressure Ms. Calhoun into spending close to $10,000 on

“Submission Services.” (f|82-84). Part of that pressure consisted of a false claim that

InventHelp was wrapping up a “special offer” where Ms. Calhoun could save $1,000 if she

signed that very day. (THf84-87, see fpl-22).

Long story short and $11,000 later, after years of paperwork sent by InventHelp giving

the false impression that it was disseminating her idea to third-party companies, Ms. Calhoun

learned that she’d been had.

Sadly, her story is not unique - InventHelp has scammed tens of thousands of aspiring

inventors, defrauding them out of literally hundreds of millions of dollars.

The Report and Recommendation properly characterizes this case as one for violation of

the AIPA and fraud, and Plaintiff thus respectfully requests that this Court overrule InventHelp’s

objections.

3
FACTS

Plaintiff adopts and incorporates by reference the “Facts” section of its Memorandum of

Law in Opposition to the InventHelp Defendants’ motion to dismiss (EOF 36 at pp. 3-7), as well

as the thorough recitation set forth in the Report and Recommendation at 3-10.

ARGUMENT

I. THE AMENDED COMPLAINT STATES CLAIMS PURSUANT TO THE


AIPA

There can be no question that the Report and Recommendation correctly found that the

Amended Complaint states claims pursuant to the AIPA. (ECF 48 pp. 23-29; see ECF 36 pp.8­

13).

The American Inventors Protection Act of 1999, 35 U.S.C. § 297, prohibits two different

types of malfeasance on the part of invention promotion firms:

• Subsection (a) requires detailed disclosure of the number of customers with whom the
invention promoter has contracted in the past 5 years, as well as detailed disclosure of
the total number of customers known by the invention promoter to have received
license agreements and/or a net financial profit “as a direct result of the invention
promotion services provided by such invention promoter” (35 U.S.C. § 297(a)(1)-
(4)); and

• Subsection (b) prohibits invention promotion firms from making “false or fraudulent”
statements , representations or omissions of material fact,” (35 U.S.C. § 297(b)(1)).

The Report and Recommendation correctly found that the Amended Complaint

comprehensively alleges violations of both subsections (a) and (b).2

2 Subsections (a) and (b) of the AIPA each provide stand-alone grounds for claims under this
statute. (ECF 48 at p. 25).

4
A. The Amended Complaint Alleges False Disclosures Pursuant to the AIPA

As to Subsection (a), InventHelp argues that the seemingly disparate disclosures detailed

in the Amended Complaint are on behalf of two different entities - InventHelp and Western

InventHelp - and, as such, are in compliance with the AIPA. This argument fails.

First and foremost, the Amended Complaint alleges that all disclosures, be they on behalf

of InventHelp, Western InventHelp, or any other entity, are false. (ffl[ 24, 63, 94-99, 123, 133(a),

145, 178, 179,194). Allegations far less detailed than those set forth in the instant Amended

Complaint have been held sufficient by courts examining this very issue. See Wynn v. Davison

Design &Dev’t, Inc., 2010 WL 891905, *7-8 (S.D. Ala. 2010)(complaint stated claim pursuant

to AIPA where it simply alleged “to the extent any disclosure was made ... such information

was inaccurate, false and misleading); Dungee v. Davison Design & Dev % Inc., Civ. Action No.

10-325 GMS (D. Del.,2010)) (ECF No. 36 at Ex. E 20 (“upon information and belief, to the

extent any AIPA disclosures were made by Davison with respect to the preceding paragraphs,

such information was incomplete, inaccurate, false and misleading”) and Ex. F (District Court’s

Order denying motion to dismiss AIPA claim)).

Second, as noted by the Report and Recommendation at 24-25, if each disclosure was for

a stand-alone entity and the numbers could somehow be reconciled (a mathematical miracle),

Western InventHelp omitted from its disclosures (ECF No. 30, Exs. C and E) the number of

customers who received license agreements, and this alone constitutes a violation of the AIPA.

See 35 U.S.C. §294(a)(4) (“An invention promoter shall have a duty to disclose ... the total

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number of customers known by the invention promoter to have received license agreements for

their inventions”).3

So too with Technosystems Service Corp. If, as InventHelp contends, each InventHelp

entity working on her behalf was to provide Ms. Calhoun its own specific disclosure numbers,

then, pursuant to Etta’s Submission Agreement, Technosystems should have done so as well, as

the Submission Agreement explicitly states that Etta was contracting with InventHelp, Western

InventHelp, and Technosystems Service Corp. flj 88; ECF No. 30 Ex. D at 5,113). Etta

received no disclosures whatsoever from Technosystems Service Corp.

Third, the Amended Complaint quotes from a variety of InventHelp disclosures that do

in fact contradict one another. (See 94-99). Whether or not InventHelp’s disclosures are

internally consistent is a question of fact. The face of the Amended Complaint certainly pleads

that the disclosures are inconsistent, false and misleading. This is more than sufficient to allege

violation of subsection (a) of the AIPA.

B. The Amended Complaint Alleges False Statements Pursuant to the AIPA

As to Subdivision (b), InventHelp incredibly argues that the Amended Complaint’s

allegations of false statements are “conclusory” and fail to “explain why those statements were

material.” (InventHelp Dels.’ Objections atp. 5).

Again, the Amended Complaint alleges that all of the figures in the InventHelp

Defendants’ federally-mandated disclosures are false and fraudulent. (%^| 24, 63, 94-99, 123,

3 Of
note, those 2012 and 2013 disclosures state that they are on behalf of “INVENTION
DEVELOPER,” further obfuscating this issue. (ECF No. 30 at Exs. C and E).

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133(a), 145, 178,179,194). These disclosures are required by the AIPA, and as such they are

ipso facto material and Plaintiff was entitled to rely upon them as a matter of law.

The Amended Complaint also provides a detailed recitation of the InventHelp

Defendants’ false statements - including exact dates of telephone calls and in-person meetings,

the names of the various InventHelp representatives, the content of voluminous false statements

and omissions, and dated correspondence containing additional misstatements. fflj50, 52, 53, 55,

56, 63, 67, 69, 72, 73, 81, 83, 84, 111, 112, 113, 114, 117, 178, 179, 180-188).

Importantly, the Amended Complaint alleges that InventHelp’s entire business model is

constructed to fraudulently induce consumers into purchasing exorbitantly expensive

“Submission Services.” It alleges: “although purporting to be an end in itself, in truth and in

fact the Basic Information Package is part of Defendants’ ploy to convince consumers that their

inventions are marketable, and con them into signing contracts for the more expensive

Submission Services.” (^f 81).

After seeing a television advertisement for InventHelp, on February 18, 2012 Ms.

Calhoun met with InventHelp representative Renee Hopes in Pearland Texas, who suggested an

“add on” to her invention - a “listening device” to play audio recordings of the Bible verses.

(|56). Unbeknownst to Ms. Calhoun, InventHelp suggested this “add on” to increase the amount

of money it could charge her, not because it would render her idea more profitable. 57). This

practice accords with a June 18, 1999 letter from a former InventHelp patent attorney to the

United States Patent & Trademark Office stating that he was instructed “to make non-patentable

invention[s] patentable by virtue of alterations to the nature and structure of consumers’

proposed inventions without consumers’ consent.” 59).

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After paying $780 for the Basic Information Package, Ms. Calhoun was repeatedly

telephoned by InventHelp representative Joy Hinson, purportedly to arrange a meeting to go over

her Basic Information Package results; while a meeting ultimately took place, it’s true purpose

and result was to pressure Ms. Calhoun into spending close to $10,000 on “Submission

Services.” (Hf82-84). Part of that pressure consisted of a false claim that InventHelp was

wrapping up a “special offer” where Ms. Calhoun could save $1,000 if she signed that very day.

(111(84-87, see m]21-22).

Additionally, the Amended Complaint alleges that InventHelp’s business platform and

sales pitch on the whole are fraudulent, by virtue of fictional third-party lists of companies .

concocted by InventHelp to create the impression that InventHelp has “relationships” with

“companies looking for new ideas.” (H[ 90, 91, 92, 100, 101, 102, 103, 109, 179, 182). In fact,

not only are these companies oftentimes works of pure fiction, InventHelp also has no

mechanism to follow up with any company that may express interest in an idea - companies on

InventHelp’s “Data Bank” and “database” lists (to the extent some actually exist) are given no

means to contact InventHelp other than the 1-800 telephone number on InventHelp’s late night

television commercials, and those calls go unreturned. (ffl[102-03).4

4 For example, the Amended Complaint alleges, “[b]y letter dated April 23, 2014, Ms.
Calhoun received a letter from InventHelp stating that a brochure describing her invention “was
mailed to the companies on the enclosed report listed as ‘Data Bank.’” (1J100). “Attached to that
letter is a list of 20 “Data Bank” companies.” (Id.). InventHelp sent Ms. Calhoun another letter
dated March 8, 2016, also asserting that a brochure describing her invention “was mailed to the
companies on the enclosed report listed as ‘Data Bank.’” (^f 113; see ECF 36 Ex. A). The
Amended Complaint alleges: “this list of Data Bank companies, and Data Bank company lists
sent to all InventHelp customers, are shams. Some of the companies do not exist and are
purposefully misspelled to resemble actual existing companies that have no relationship with
InventHelp (for example, listing the company as “Inc.” instead of “EEC”). Other “Data Bank”
companies claim to have no relationship with InventHelp, and have not signed any
confidentiality agreements, or any agreements whatsoever, with InventHelp. Upon information

8
Unsurprisingly, InventHelp points to a litany of disclaimers in its various contracts.

However, the Amended Complaint alleges that the disclosures and statements made in those very

same contracts about InventHelp’s customers’ success rates and licensing agreements are all

false. Thus, those disclaimers are of no help to InventHelp here.

In short, InventHelp’s argument that its misstatements and omissions were not material

and/or that Etta Calhoun should not have reasonably relied upon them is absurd.

C. The AIPA Claims Are Timely

Magistrate Mitchell and the parties agree that the four-year statute of limitations set forth in

28 U.S.C. § 1658(a) applies here. (ECF 48 atp. 27).

Plaintiff filed this suit on June 1, 2018. (ECF 1). Thus, Plaintiff would have had to have

been on notice of her claims before June 1,2014 for this case to be time-barred. The Amended

Complaint specifically alleges (and documentary evidence proves) that InventHelp sent Plaintiff

letters dated December 10, 2015 and March 8, 2016 falsely asserting InventHelp’s continuing

work on her behalf. ffill2, 113; ECF 36 Exs B and A). These letters defeat the InventHelp

Defendants’ statute of limitations argument as a matter of law (or, at the very least, create an

issue of disputed fact).

For example, the letter dated March 8, 2016 states, “Your New Product Submission Brochure

was mailed to the companies on the enclosed report listed as ‘Data Bank’ . . . . We will inform

and belief, some of the companies are sham companies and/or are affiliated with InventHelp.” (^|
101); see (^J113) (“InventHelp does not have relationships with these companies, these
companies did not sign nondisclosure agreements with InventHelp, and, to the extent some of
these companies actually exist, none of these companies have ever licensed a product from
InventHelp and/or Intromark.”).

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you of any inquiries we may receive as a result of our submission efforts.” (ECF 36 Ex. A; f

113). That letter contains a list of 50 companies. The Amended Complaint alleges, "InventHelp

does not have relationships with these companies, these companies did not sign nondisclosure

agreements with InventHelp, and, to the extent some of these companies actually exist, none of

these companies have ever licensed a product from InventHelp and/or IntroMark.” 113). Etta,

however, did not know this, nor was she given any reason to suspect this, flfff 114-115).

The Intromark Proposal, dated August 2, 2013, states that it “shall remain in effect for a

period of twenty-four (24) months. This will automatically renew for an additional three years

unless terminated in writing by Client upon thirty (30) days’ written notice prior to the expiration

of the original term of this Agreement.” 104; ECF 30, Ex. F at 1, % 3). Thus, the Intromark

Proposal remained in full force and effect for five (5) years, until August 2, 2018.

The InventHelp Defendants argue that Plaintiff should have been on notice of its

malfeasance as of August 2013 when she received the second set of the InventHelp Defendants’

false and misleading disclosures. However, the InventHelp Defendant’s own argument (that

those disclosures are presented in such a way that they appear to be on behalf of different

InventHelp entities) defeats their proposition that these should have put Etta on notice of fraud.

For the reasons set forth herein, those in the Report and Recommendation (ECF 48 at pp. 42­

43), and those elucidated in Plaintiffs October 24, 2018 Memorandum in Opposition to the

InventHelp Defendants’ motion to dismiss (ECF 36 at pp. 31-34), the Amended Complaint’s

detailed allegations suffice to defeat the InventHelp Defendants’ statute of limitations challenge.

See Niiaryee v. Davidson Design &Dev’t, 2018 WL 1072439, *3-4 (rejecting dismissal on

statute of limitations grounds and holding, “the Court cannot conclude, based solely on the

allegations in the Complaint, that the remainder of Plaintiff s claims are time-barred. ...

10
Although Defendant argues that Plaintiff should have been on notice of potential ‘storm

warnings’ in 2009, when he received the first rejection from a target company, there is no

indication in the Complaint that Plaintiff knew, or should have known, any time prior to March

2014 [when he received an incorrect rendering of his invention] that Defendant was not

marketing his concept.”); Dungee v. Davison Design & Dev’t, Civil Action No. 10-325 GMS,

Order dated March 29, 2001 (“The court will not determine the merits of defendant’s statute of

limitations defense at this early stage in the proceedings, since there are numerous disputes of

material fact that may affect the court’s decision.” (Plitt Affi Ex. F); Fine v. Checcio, D.D.S., 582

Pa. 253, 275 (Pa. 2005) (doctrine of fraudulent concealment tolling statute of limitations is a

question of fact); DeTello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 (11th Cir. 2005)

(“Dismissal under Federal Rule of Civil Procedure 12(b)(6) on statute of limitations grounds is

appropriate only if it is apparent from the face of the complaint that the claim is time-barred. At

the motion to dismiss stage, a complaint maybe dismissed on the basis of a statute of limitations

defense only if it appears beyond a doubt that Plaintiffs can prove no set of facts that toll the

statute.”)

II. THE AMENDED COMPLAINT STATES CLAIMS PURSUANT TO THE


TCPA

The Report and Recommendation correctly holds that Plaintiff has adequately pled a

TCPA claim. (ECF 48 pp. 30-32).

The Amended Complaint alleges that the InventHelp Defendants called Etta Calhoun’s

cell phone repeatedly after being told to cease and desist, and that it used automatic telephone

dialing systems to do so. (If 116,169). These allegations are enough to withstand a motion to

dismiss. (See ECF 36 at pp.19-20).

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III. THE AMENDED COMPLAINT PLEADS FRAUD AND NEGLIGENT
MISREPRESENTATION

The InventHelp Defendants’ next argument boils down to a single point - that the

dizzying array of disclaimers and integration clauses in their various contracts bar Plaintiffs

fraud and negligent misrepresentation claims. The Report and Recommendation (ECF 48 at pp.

32-36) properly rejected this argument.

First and foremost, the Amended Complaint alleges that all of InventHelp’s numbers

regarding customers’ success rates were knowingly false - an integration clause cannot protect

InventHelp from fraud and negligent misrepresentation claims stemming from those outright lies

about InventHelp’s success rate that are contained in these very same contracts that contain the

disclaimers and integration clauses.

Second, the Amended Complaint alleges fraudulent inducement by virtue of the Basic

Information Package and fictional Data Bank lists. It alleges that InventHelp made various

misrepresentations and omissions regarding then-existing facts about third parties in order to con

Ms. Calhoun into signing the contracts. Thus, the integration clauses are inapplicable. See

Boardakctn Rest, LLC v. Gordon Group Holdings, LLC, 2015 WL 4597970, *9 (E.D.P.A. 2015).

The Amended Complaint states: “Although purporting to be an end in itself, in truth and

in fact the Basic Information Package is part of Defendants’ ploy to convince consumers that

their inventions are marketable, and con them into signing contracts for the more expensive

Submission Services.” (f 81). After seeing a television advertisement for InventHelp, Ms.

Calhoun met with an InventHelp representative, who suggested an “add on” to her invention - a

“listening device” to play audio recordings of the Bible verses. fl|56). Unbeknownst to Ms.

Calhoun, InventHelp suggested this “add on” to increase the amount of money it could charge

12
her. (| 57). This practice accords with a June 18, 1999 letter from a former InventHelp patent

attorney to the United States Patent & Trademark Office stating that he was instructed “to make

non-patentable inventions] patentable by virtue of alterations to the nature and structure of

consumers’ proposed inventions without consumers’ consent.” (f 59).

Ms. Calhoun is a religious woman and is of modest means. ffl22, 48, 66). After

financing $780 for the Basic Information Package, Ms. Calhoun was repeatedly telephoned by

InventHelp representatives, purportedly to arrange a meeting to go over her Basic Information

Package results. (fj[82-84) She repeatedly told InventHelp that the $ 10,000 Submission

Services were far out of her price range. (](% 65, 66, 69, 70, 73, 85). Nevertheless, InventHelp

representatives incessantly hounded her and falsely pumped up the potential profitability of her

idea, and Ms. Calhoun ultimately capitulated and financed the exorbitant sum through

InventHelp Defendant Universal Payment Corporation. (ffl[ 67, 69, 70, 71, 73, 82, 83, 84, 86).

Part of that pressure consisted of a false claim that InventPIelp was wrapping up a “special offer”

where Ms. Calhoun could save $1,000 if she signed that very day. (fl84-87, see 21-22).

Third, if a party “contends that [s]he executed agreements because [s]he was defrauded

by being led to believe that the document contained terms that actually were omitted,” then an

integration clause does not bar fraud and negligent misrepresentation claims. Youndt v. First

Nat’l Bank of Port Allegany, 868 A.2d 539, 546 (Pa. Super. 2005). Here, the Amended

Complaint alleges just that: “If and when Class Plaintiffs express questions or concerns about

forfeiting any legal rights that they may have, Defendants’ deceptively point out provisions in

the purported contracts that appear to retain Class Plaintiffs’ rights, while hiding those

provisions that seek to vanquish those same rights.” 156). See 120 (“Defendants also

13
fraudulently misrepresent the actual content of the contracts between Defendants and Class

Plaintiffs, thereby tricking Class Plaintiffs into signing documents that state different terms and

conditions than those represented by Defendants (fraud4n-the-factum)\ 26 (“Defendants

represent that if Class Plaintiffs can no longer make payments, then there is “no risk” - the

contracts will simply expire with no further performance on either end. However, if and when

Class Plaintiffs stop paying, Defendants dog Class Plaintiffs, threaten to “destroy” Plaintiffs’

credit and threaten to put liens on their homes and other personal property.”)

Fourth, the absurdity of InventHelp’s argument is apparent - Etta signed the Submission

Agreement and Intromark Proposal on the same day and time, at the same meeting, and with the

same signatory on behalf of all entities. (See ECF 30 Exs. D and F.) Each of these contracts

contains its own integration clause. Which integration clause controls?

InventHelp’s own documentary evidence (referenced in the Amended Complaint) illustrates

that the company itself made no separation between the various entities contained therein, and

that it seems to go out of its way to confuse and intimidate consumers with its multiple contracts.

For example, by letter dated December 10, 2015, on InventHelp letterhead, InventHelp stated:

“Beginning now, in accordance with your Intromark Proposal, we will continue to follow up

with any company who may express an interest in your invention as a result of our efforts for 3

additional years.” (% 112; ECF 36 Aff. Ex. B). Then, by letter dated March 8, 2016, InventHelp,

on its own letterhead stated, “We are pleased to report our efforts on your behalf. Your New

Product Submission Brochure was mailed to the companies on the enclosed report...”) (^ 113,

ECF 36 Ex. A). Flowever, the Submission Agreement signed by Etta Calhoun was with Western

InventHelp, (ECF 30 Ex. D). That contract states that “The expected date of completion of

14
development services under this Contract is twenty-four months.” (EOF 30 Ex. D at p. 5, Tfl7).

It is the Intromark Proposal that provides for an additional three years of service. (ECF 30 Ex. F

at p. 1, U 3). However, the follow-up letter purportedly providing Intromark services is on

InventHelp letterhead. (ECF 36 Ex. B). Moreover, Etta signed a “Retail Installment Contract”

with Universal Payment Corporation, but her payments thereto were charged on her credit card

by “Techno InventHelp.” 67-68). The Submission Agreement itself explicitly states that

InventHelp, Western InventHelp, and Technosystems Services Corp. are all performing under

that contract, (f 35, ECF 30 Ex. D p. 5, % 13).

In fact, a single individual, InventHelp representative Joy Flinson, signed separate contracts

on behalf of Western InventHelp (ECF 30 Ex. D at 7), Intromark Incorporated (ECF 30 Ex. F at

3) and InventHelp (ECF 36 Ex. C) at the August 2 meeting with Etta Calhoun. Likewise,

InventHelp representative Renee Hopes signed separate documents on behalf of Western

InventHelp (ECF 30 Ex. A at 2) and InventHelp (ECF 30 Ex. B) at the February 18 meeting with

Etta Calhoun.

In sum, the Amended Complaint paints a clear picture - InventHelp’s entire business model

is a fraud, it purposefully lies, confuses and bewilders customers (including Ms. Calhoun), and

these tort claims must stand. See Hemphill v. Nationstar Mortgage LLC, 2018 WL 4929864,

*10 (E.D.Pa. 2018); Toy v. Metro. Life Ins.. Co., 928 A.2d 186, 208 (Pa. 2007)/ 5

5 As if this was not bad enough, the Amended Complaint details fraud above and beyond
these outright lies: “after years of inaction, the InventHelp Defendants reappear to Class
Plaintiffs, sometimes in the guise of distribution, marketing or manufacturing companies, and
other times as representatives of InventHelp, falsely claiming that they have purchase orders,
licensing agreements, and/or retail distributors at the ready. After scamming more money from
Plaintiffs, they disappear without a trace.” (ffl7-18).

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IV. THE AMENDED COMPLAINT PLEADS BREACH OF CONTRACT

The InventHelp Defendants’ arguments as to breach of contract are specious. Ms.

Calhoun had no way of knowing that the InventHelp Defendants breached their contracts with

her before June 1, 2014 - she believed that the letters, statements, and Data Bank lists from

InventHelp were legitimate. Likewise, although she was extremely distressed in August 2014

upon receipt of InventHelp’s DVD rendering of her Word of God Bedding, she called

InventHelp and was assured by an InventHelp representative that her invention was purposefully

presented in an unattractive light because , otherwise, “someone could steal your idea.” (f 111).

Etta took InventHelp at its word - after all, she thought, InventHelp were experts in the field, and

she was merely a layperson. (| 111).6

Undisputed documentary evidence shows that as of March 8, 2016, Etta believed, and

was explicitly led to believe by virtue of InventHelp’s letters and representations, that

InventHelp was fulfilling its contractual obligations to her. 113-14, ECF 36 Ex. A). In truth,

InventHelp was doing nothing more than generating paperwork to create this false impression

(and, of course, collecting Etta’s monthly payments).

6 Incidentally,
August 2014 falls within the four-year statute of limitations so even if the Court
were to use this as the ‘notice date,’ the claims would not be time-barred.

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V. THE INVENTHELP DEFENDANTS’ MOTION TO STRIKE IS
FRIVOLOUS

The Report and Recommendation correctly found the motion to strike to be without

merit. (ECF48pp. 44-45). For those reasons, together with those in Plaintiff s October 24,

2018 Memorandum in Opposition to InventHelp Defendants’ motion to dismiss (EOF 36 p.35)

this Court should deny the motion to strike.

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CONCLUSION

For the reasons set forth herein, together with those in Plaintiffs papers in opposition to

the InventHelp Defendants’ motion to dismiss (ECF 36), and those set forth in Magistrate

Mitchell’s January 3, 2019 Report and Recommendation (ECF 48), Plaintiff respectfully requests

that the Court overrule the InventHelp Defendants’ objections in toto.

Dated: White Plains, New York


January 30, 2019
Respectfully submitted,
OXMAN LAW GROUP, PLLC
Attorneys for Plaintiff

By:
JUI SKY PLITT, ESQ.
Bar
120 Bloomingdale Road, Suite 100
White Plains, New York 10605
(914) 422-3900
(914) 422-3636 (Fax)
inlitt@oxmanlaw. com

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