16‐3811‐(L) Federal Trade Commission v. Federal Check Processing, Inc.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2018 (Argued: October 3, 2018 Decided: January 11, 2019) Docket No. 16‐3811‐cv, 16‐3805‐cv

FEDERAL TRADE COMMISSION, Plaintiff‐Appellee,

v.

WILLIAM MOSES, individually and as an officer of one or more of the Corporate Defendants, FEDERAL CHECK PROCESSING INC., a New York corporation, MARK BRIANDI, individually and as an officer of one or more of the Corporate Defendants. Defendants‐Appellants, FEDERAL RECOVERIES, LLC, et al., Defendants.

Before: CABRANES, SACK, AND PARKER, Circuit Judges.

The Federal Trade Commission brought this action in the United States

District Court for the Western District of New York alleging that the defendantsʹ

debt collection practices had violated several provisions of the Federal Trade

Commission Act and the Federal Fair Debt Collection Practices Act. The court

(William M. Skretny, Judge) adopted a report and recommendation of Magistrate 16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

Judge Michael J. Roemer recommending that summary judgment be granted in

favor of the FTC.

The defendant‐appellant William Moses submitted no brief prior to the

deadline for submission set by this Court. We therefore dismiss his appeal

pursuant to Local Rule 31.2(d). The defendant‐appellant Mark Briandi asserts

that there are genuine issues of material fact as to whether he had knowledge of

the businessesʹ practices at the heart of this action. He also contends that the

disgorgement order against him is grossly excessive. The evidence before the

court on summary judgment established as a matter of law that Briandi had

control over the companiesʹ affairs, was aware of their illegal practices, and,

therefore, was liable for them. We conclude that the disgorgement assessed

jointly and severally against all defendants, including Briandi and Moses, was in

an appropriate amount because it was a reasonable approximation of the total

amounts received by the defendant companies from consumers as a result of

their unlawful acts. The judgment of the district court is therefore:

AFFIRMED.

HERBERT L. GREENMAN, Lipsitz Green Scime Cambria, LLP, Buffalo, NY, for Defendant‐Appellant Mark Briandi.

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MICHELE ARINGTON (David C. Shonka, Joel Marcus, Katherine M. Worthman, Colin A. Hector, on the brief), Federal Trade Commission, Washington, D.C., for Plaintiff‐Appellee. SACK, Circuit Judge:

The Federal Trade Commission (the ʺFTCʺ or the ʺgovernmentʺ) brought

this action against thirteen corporate entities (the ʺCorporate Defendantsʺ) and

defendants‐appellants Mark Briandi (ʺBriandiʺ) and William Moses (ʺMosesʺ)

alleging that the defendants’ combined debt collection violated the Federal Trade

Commission Act (ʺFTCAʺ),

(a), and the Fair Debt Collection

Practices Act (ʺFDCPAʺ),

et seq. The United States District Court

for the Western District of New York (William M. Skretny, Judge) adopted the

report and recommendation of Magistrate Judge Michael J. Roemer,

recommending the grant of summary judgment to the FTC on the grounds that

the evidence before the court had established as a matter of law that the

Corporate Defendants violated the FTCA and FDCPA, and that Briandi and

Moses were personally liable for the amount of money that the defendants had

received because of the violations.

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16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

Briandi and Moses appealed. Moses did not file a brief, and, there being

no valid excuse proffered therefor, we dismiss his appeal pursuant to our Local

Rule 31.2(d).1

Briandi does not contest the district court’s conclusion that the Corporate

Defendants violated the FTCA and FDCPA. He argues instead that the court

erred by concluding that he is personally liable for the violations. He also

contends that the district court erred by setting the measure of equitable

monetary relief as the total proceeds of the debt collection enterprise. For the

reasons set forth below, we agree with the district court on both issues, and,

therefore, affirm its judgment.

BACKGROUND

General Factual Background2

In 2009, Briandi and Moses founded, and thereafter co‐owned and co‐

directed, the first of the Corporate Defendants, Federal Recoveries, LLC. Over

Local Rule 31.2(d) provides: ʺFailure to File. The court may dismiss an appeal or 1

take other appropriate action for failure to timely file a brief or to meet a deadline under this rule.ʺ 2 The following statement of facts is taken primarily from the FTCʹs ʺStatement of

Material Facts as to Which There is no Genuine Issue to be Tried,ʺ which is largely undisputed, and, where relevant, evidence Briandi proffered in attempting to establish the existence of a genuine dispute of material fact. 4

16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

the next few years, Briandi or Moses incorporated twelve other Corporate

Defendants, which were part of a single debt collection enterprise. The

Corporate Defendantsʹ business consisted largely of collecting payday loan

debts,3 which they bought from consumer‐debt creditors and compiled into debt

portfolios. These portfolios contained debtorsʹ names, addresses, and general

information about the debts allegedly owed.

At the Corporate Defendantsʹ behest, nearly all of their approximately

twenty‐five employee‐debt collectors would routinely contact debtors by

telephone and falsely identify themselves as ʺprocessors,ʺ ʺofficers,ʺ or

ʺinvestigatorsʺ from a ʺfraud unitʺ or ʺfraud division,ʺ then accuse debtors of

check fraud or a related crime and threaten them with criminal prosecution if

they did not pay their debts. On some occasions, collectors called friends, family

members, employers, or co‐workers of debtors, telling them that the debtors

owed a debt, had committed a crime in failing to pay it, and faced possible legal

ʺWhile there is no set definition of a payday loan, it is usually a short‐term, high cost 3

loan, generally for $500 or less, that is typically due on [the borrowerʹs] next payday.ʺ U.S. Consumer Financial Protection Bureau, ʺWhat is a payday loan?,ʺ available at https://www.consumerfinance.gov/ask‐cfpb/what‐is‐a‐payday‐loan‐en‐1567/ (last visited December 16, 2018); see also Fed. Trade Commʹn v. Fed. Check Processing, Inc., No. 14‐CV‐122‐WMS‐MJR,

, at *2 n.5,

, at *7‐8 n.5 (W.D.N.Y. Apr. 13, 2016) (similar). 5

16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

repercussions. When debtors or other interested parties sought further

information about the debt, collectors typically refused to provide it.

After receiving a litany of consumer complaints about these activities, the

Office of the New York State Attorney General began investigating the Corporate

Defendantsʹ businesses. On February 3, 2013, in an attempt to terminate the

investigation, Briandi and Moses executed, on behalf of themselves and the

relevant Corporate Defendants, a written ʺAssurance of Discontinuanceʺ (the

ʺAODʺ) with the State Attorney General. While not admitting fault, Briandi and

Moses conceded in the AOD that the Corporate Defendants were subject to

specified federal and state laws, including the FDCPA. Additionally, they

agreed to dissolve some of the Corporate Defendants. And they stated that they

would advise the New York State Attorney Generalʹs Office if any of the

Corporate Defendants changed their principal place of business; if the individual

defendants incorporated a new corporation or business entity; or if any of the

Corporate Defendants did business under a new name. On May 8, 2013, Briandi

and Moses also executed an affidavit in which they represented that they had

implemented procedures — including the hiring of a ʺcompliance officerʺ — to

ensure that the Corporate Defendants met the requirements of the FDCPA.

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16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

Shortly after the AOD became effective, though, and without informing

the Attorney Generalʹs Office, Briandi and Moses incorporated new Corporate

Defendants, some in other states. And the Corporate Defendants continued to

engage in the forsworn practices.

Briandiʹs Corporate Responsibilities

Briandi was a co‐founder, co‐owner, co‐director, and general manager of

all but perhaps one of the Corporate Defendants. He maintained a personal

office within the Corporate Defendantsʹ East Amherst, New York, office and a

desk in the ʺcollection callʺ area from which dunning calls were made by the

companiesʹ employees. Briandi had signature authority with respect to the

companiesʹ bank accounts, and in the more than four years between February 10,

2010, and February 26, 2014, received approximately $1.3 million in

compensation from the Corporate Defendants.

Briandiʹs principal responsibilities for the companies included signing

their checks; managing the banking side of their businesses; handling personnel

matters, such as hiring and firing employees; maintaining the companiesʹ phone

systems and websites; receiving consumer payments; and — along with Moses,

who was in charge of collections — operating the entity, bearing the mellifluous

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16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

name ʺFlowing Streams,ʺ which purchased consumer debts. Prior to 2013,

Briandi would himself also occasionally make collection calls on behalf of the

Corporate Defendants.

After the instant litigation began, Briandi asserted in a deposition taken by

FTC counsel on April 15, 2015, that, beginning in March of 2013, he had a

diminished involvement with the Corporate Defendants. He testified that this

resulted from his decision to become a pastor, which led to his spending much of

his work days praying in his office and taking online bible classes. Although

Briandi acknowledged that he continued to review corporate bank accounts from

time to time, speak to managers, and occasionally take ʺhostileʺ consumer calls,

Briandi Dep., April 15, 2015, at 65‐66, 72; he denied having continued to visit his

desk on the collection floor more than ʺonceʺ or ʺtwiceʺ a day,

.

Procedural History

On February 24, 2014, the FTC filed a complaint against Briandi, Moses,

and the Corporate Defendants in the United States District Court for the Western

District of New York. It alleged two violations of Section 5(a) of the FTCA,

(a) (ʺUnfair or Deceptive Acts or Practicesʺ), and four violations of the

FDCPA, 15 U.S.C § 1692 (ʺDebt Collection Practicesʺ). The FTC accused the

8

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defendants of violating the statutes, despite having executed the AOD, by

operating companies in which collectors continued to mask their identities,

falsely accuse consumers of various crimes, and refuse to reveal to debtors the

circumstances and nature of alleged debts. The FTC also sought and received

from the district court an ex parte temporary restraining order prohibiting the

defendants from using false representations or deceptive means to continue

collecting debts, freezing all of the defendantsʹ assets, and appointing a receiver

to oversee the Corporate Defendants.

On June 17, 2014, Briandi and Moses asked the district court for one year in

which to conduct discovery. A magistrate judge granted their request but noted

that ʺno extensions of this order will be entertained.ʺ Dkt. No. 67.

Meanwhile, the FTC subpoenaed and received copies of a variety of scripts

used by the Corporate Defendantsʹ employees to make demand telephone calls,

recordings of telephone calls between various collectors and consumers, and

many consumer complaints and declarations detailing and challenging the

companiesʹ practices. The FTC also submitted interrogatories to the defendants

and took oral depositions of Briandi and Moses. For their parts, though, Briandi,

Moses, and the Corporate Defendants engaged in no discovery. And Briandi

9

16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

failed to answer interrogatories propounded by the FTC until after the discovery

deadline had passed, and then only as part of his attempt to oppose the FTCʹs

motion for summary judgment.

The FTC moved for summary judgment on August 27, 2015. The motion

included a request for $10,852,396 in monetary relief, for which, the FTC

asserted, all of the defendants, include Briandi and Moses, should be jointly and

severally liable. That figure was based on ʺthe gross total of consumer funds

deposited by merchant processorsʺ found ʺin the [d]efendantsʹ settlement

accounts.ʺ Second Suppl. Decl. of FTC Investigator Michael B. Goldstein ¶ 26

(July 24, 2015).

Briandi did not dispute the allegations that the Corporate Defendants

engaged in wrongdoing. He denied, however, that he could be held individually

liable for the Corporate Defendantsʹ actions. He based that argument largely on

his contention that he did not control the Corporate Defendants, did not

participate in their activities, and lacked any knowledge of their alleged

wrongdoing. Briandi also asserted that the governmentʹs requested relief vastly

exceeded the Corporate Defendantsʹ unlawful gains.

The District Courtʹs Decision

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16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

On April 13, 2016, Michael J. Roemer, the magistrate judge to whom the

matter had by then been referred by the district court ʺfor all pre‐trial matters,

including preparation of a report and recommendation on dispositive motions,ʺ

issued a report and recommendation concluding that the FTCʹs motion for

summary judgment should be granted. FTC v. Fed. Check Processing, Inc., No. 14‐

CV‐122‐WMS‐MJR,

, at *1,

, at *2

(W.D.N.Y. Apr. 13, 2016), adopted, No. 14‐CV‐122S,

,

(W.D.N.Y. Oct. 13, 2016). First, the magistrate judge

concluded that the FTC had proved that Briandi both had ʺthe authority to

control the [C]orporate [D]efendants and knew of their wrongdoing.ʺ

,

at *41‐42. According to the magistrate judge, even if

Briandi somehow lacked detailed knowledge of the Corporate Defendantsʹ illicit

collection practices, he could not plead ignorance after expressly agreeing to the

2013 AOD.

,

at *40. The existence of the

AOD executed by Briandi established that he had notice of the Corporate

Defendantsʹ illicit collection activities and was required to ensure that they

followed the FTCA and the FDCPA.

at *40.

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16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

Second, the magistrate judge concluded that the FTCʹs disgorgement

request ʺreasonably approximate[d] the [C]orporate [D]efendantsʹ unjust gains.ʺ

,

at *48. As the magistrate judge observed,

this amount was based on bank account data compiled by the FTC showing that

ʺbetween May 2010 and March 2014 the [C]orporate [D]efendants collected

$10,852,396 from consumers.ʺ

at *48. The FTC

had also demonstrated that ʺthe defendantsʹ misrepresentations were widely

disseminated,ʺ and that their operation was ʺpermeated with fraud.ʺ

at *48. Finally, the magistrate judge noted that the

defendant had failed to produce any evidence that would serve to dispute the

recommended penalty.

at *48.

On October 12, 2016, the district court adopted Magistrate Judge Roemerʹs

report and recommendation in its entirety and entered judgment in the

governmentʹs favor. Fed. Trade Commʹn v. Fed. Check Processing, Inc., No. 14‐CV‐

122S,

, at *1,

, at *4 (W.D.N.Y. Oct.

13, 2016).

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DISCUSSION

Briandi makes three principal arguments on appeal. First, he contends

that he should have been given time to conduct discovery. Second, he argues,

based on the information contained in his deposition, that there were material

facts at issue as to whether he could be held individually liable for the actions of

the Corporate Defendants. He contends that these factual issues rendered

summary judgment for the FTC improper. Finally, he asserts that the

disgorgement amount adopted by the district court was grossly excessive. For

the reasons that follow, we disagree with each of these contentions.

I. Standard of Review

A district courtʹs decision on a partyʹs request for ʺmore time to conduct

discovery . . . is subject to reversal only if [the district court] abused its

discretion.ʺ Paddington Partners v. Bouchard,

(2d Cir. 1994).

We review the ʺdistrict courtʹs decision to grant summary judgment de

novo, resolving all ambiguities and drawing all permissible factual inferences in

favor of the party against whom summary judgment is sought.ʺ Burg v. Gosselin,

(2d Cir. 2010) (internal quotation mark omitted). Summary

judgment is appropriate only when ʺthe movant shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter

of law.ʺ Fed. R. Civ. P. 56(a). However, ʺa party may not rely on mere

speculation or conjecture as to the true nature of the facts to overcome a motion

for summary judgment.ʺ Fletcher v. Atex, Inc.,

(2d Cir. 1995)

(internal quotation marks omitted). ʺ[C]onclusory allegations or denialsʺ

therefore ʺare not evidence and cannot by themselves create a genuine issue of

material fact where none would otherwise exist.ʺ

(internal quotation marks

omitted).

II. Additional Discovery

Briandi contends that the district court wrongly denied an extension to the

one‐year discovery period already provided. But Briandi has waived this

argument. Federal Rule of Civil Procedure 56(d) provides that a party opposing

summary judgment based on incomplete discovery must file an affidavit

explaining why such discovery is necessary. See

(ʺIf a nonmovant shows by

affidavit or declaration that, for specified reasons, it cannot present facts essential

to justify its opposition, the court may . . . allow time to obtain affidavits or

declarations or to take discovery.ʺ) Briandi submitted no such affidavit to the

magistrate judge or the district court; nor does he contend otherwise.

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Also, it was Briandi and Moses who asked for the approximately one‐year

discovery period, and then chose, for unstated reasons, not to conduct any

discovery at all during that period. Briandi now asserts that he did not

understand the ʺcircumstances of [his] position.ʺ Briandi Br. 22. However, he

identifies no standard upon which to judge whether or not that is the case. Nor

does he explain how the ʺcircumstances of his positionʺ were unclear or

confusing, or provide any authority for the proposition that, if they were, he was

therefore entitled to an extension on the lengthy period the court provided for

discovery.

III. Briandiʹs Personal Liability

Briandi argues that the district court erred in granting summary judgment

against him because genuine disputes of material fact exist regarding his control

of the debt collection agencies, and therefore his personal liability for their

actions. We disagree. In light of the undisputed evidence regarding the

Corporate Defendants’ operations and Briandi’s relationship with them, we

conclude that he had both sufficient authority over the Corporate Defendants,

and knowledge of their practices, to be held individually liable for their

misconduct as a matter of law.

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16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

A. Standard for Individual Liability Under the FTCA and FDCPA

Section 5(a)(1) of the FTCA,

(a)(1), prohibits ʺ[u]nfair or

deceptive acts or practices in or affecting commerce.ʺ The FTC must show three

elements to prove a deceptive act or practice in violation of § 5(a)(1): ʺ[1] a

representation, omission, or practice, that [2] is likely to mislead consumers

acting reasonably under the circumstances, and [3], the representation, omission,

or practice is material.ʺ FTC v. Verity Intʹl, Ltd.,

, 63 (2d Cir. 2006)

(brackets in the original; internal quotation marks omitted). ʺThe deception need

not be made with intent to deceive; it is enough that the representations or

practices were likely to mislead consumers acting reasonably.ʺ Id.

An individual may be held liable under the FTCA for a corporation’s

deceptive acts or practices ʺif, with knowledge of the deceptive nature of the

scheme, he either ʹparticipate[s] directly in the practices or acts or ha[s] authority

to control them.ʹʺ FTC v. LeadClick Media, LLC,

(2d Cir. 2016)

(quoting FTC v. Amy Travel Serv., Inc.,

(7th Cir. 1989)).4 To

prevail on the issue, the FTC must therefore establish that

The First, Fourth, Seventh, Ninth, Tenth, and Eleventh Circuits have also adopted 4

this standard. See FTC v. Direct Mktg. Concepts, Inc.,

(1st Cir. 2010); FTC v. Ross,

(4th Cir. 2014); FTC v. Amy Travel Serv., Inc.,

, 573‐74 16

16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

the corporate practices were misrepresentations or omissions of a kind usually relied on by reasonably prudent persons and that consumer injury resulted. Once corporate liability is established, the FTC must show that the individual defendants participated directly in the practices or acts or had authority to control them. Authority to control the company can be evidenced by active involvement in business affairs and the making of corporate policy, including assuming the duties of a corporate officer.

Amy Travel,

(citations omitted). ʺThe FTC is [also] required to

establish the defendants had or should have had knowledge or awareness of the

misrepresentations.ʺ

(citation omitted).

The FTC need not establish in this context that the defendant had actual

and explicit knowledge of the particular deception at issue. We agree with our

sister circuits that ʺknowledge ʹmay be established by showing that the

individual [defendant] had actual knowledge of the deceptive conduct, [or] was

recklessly indifferent to its deceptiveness, or had an awareness of a high

probability of deceptiveness and intentionally avoided learning of the truth.ʹʺ

FTC v. Primary Grp., Inc., 713 F. Appʹx 805, 807 (11th Cir. 2017) (per curiam)

(quoting FTC v. Ross,

(4th Cir. 2014)); accord FTC v. World Media

(7th Cir. 1989); FTC v. Grant Connect, LLC,

(9th Cir. 2014); FTC v. Freecom Commcʹns, Inc.,

(10th Cir. 2005); FTC v. IAB Mktg. Assocs., LP,

(11th Cir. 2014). 17

16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

Brokers,

(7th Cir. 2005).5 And we agree with the Eleventh

Circuit that ʺthis standard correctly describes the breadth of individual liability

under the FTC[A].ʺ Primary Grp., 713 F. App’x at 807. Imposing a more rigid

knowledge requirement ʺwould be inconsistent with the policies behind the

FTCA and place too great a burden on the FTC.ʺ Amy Travel,

.

Finally on this score, we conclude that the same standard applies when the

FTC brings an action to enforce the FDCPA. ʺ[V]iolations of the FDCPA are

deemed to be unfair or deceptive acts or practices under the [FTCA].ʺ Jerman v.

Carlisle, McNellie, Rini, Kramer & Ulrich LPA,

, (2010); see also 15

U.S.C. § 1692l(a) (ʺ[A] violation of [the FDCPA] shall be deemed an unfair or

deceptive act or practice in violation ofʺ the FTCA and is subject to enforcement

ʺin the same manner as if the violation had been a violation of a[n] [FTC] trade

regulation rule.ʺ) The FTC, then, is enforcing the FDCPA pursuant to its

authority under the FTCA. And because the FTC can enforce compliance with

the FDCPA only by employing the FTCA, and ʺin the same manner as a

violationʺ of the FTCA, 15 U.S.C. § 1692l(a), it follows, we conclude, that the

FTCA individual liability standard applies.

Under Eleventh Circuit Local Rule 36‐2, “[u]npublished opinions are not considered 5

binding precedent, but they may be cited as persuasive authority,” as we do here. 18

16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

B. Briandiʹs Authority to Control the Corporate Defendants

Briandi was a founder of all but perhaps one of the Corporate Defendants,

held a 50 percent ownership stake in them, had signatory authority over their

bank accounts, and served as their co‐director and general manager. In these

various roles, Briandi had the authority to control the Corporate Defendants’

deceptive actions. For example, in his deposition, Briandi admitted to having the

power to hire and reprimand employees including those responsible for the

Corporate Defendantsʹ violations of the FTCA and FDCPA.

Briandi retained this authority after signing the AOD. From March 2013

until the time of the FTCʹs complaint, he remained a co‐owner, co‐director, and

general manager of the Corporate Defendants, fielded hostile calls from

consumers, continued to review the Corporate Defendantsʹ financial activities,

and, once or twice a day, would visit the collection floor, where he would speak

to other managers about the corporationsʹ business.

Briandi’s deposition testimony that he contends was to the contrary was

directed to the question of whether he exercised authority to control the Corporate

Defendantsʹ conduct, not whether he possessed authority to control it, which is the

dispositive issue. Viewed in light of all the evidence properly before the district

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16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

court on the motion for summary judgment, then, Briandiʹs denial of

involvement in, rather than the authority to control the actions of, the Corporate

Defendants did not create a dispute of material fact requiring the district court to

deny the motion.

C. Briandiʹs Knowledge of the Corporate Defendantsʹ Activities

The defendants were ordered to disgorge $10,852,396, an amount equal to

all profits ʺresulting from [d]efendantsʹ unlawful acts or practices,ʺ Fed. Check

Processing, Inc.,

, at *4,

, at *40

(adopting magistrate judgeʹs April 13 ,2016 report and recommendation). This

amount was calculated by the magistrate judge based on the Corporate

Defendantsʹ bank account data between May 2010 and March 2014. The FTC

therefore was required to establish that Briandi had knowledge of the Corporate

Defendantsʹ wrongdoing during that entire period — both prior to and after his

execution of the 2013 AOD — to hold him individually liable for the unlawful

receipts of the Corporate Defendants during the same period. We conclude that

the FTC did so.

We agree with the magistrate judgeʹs report and recommendation that

after the AOD was executed by Briandi in 2013, Briandi was at least aware ʺof a

20

16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

high probability of fraud and intentionally avoided learning the truth.ʺ Fed.

Check Processing, Inc.,

, at *13,

, at *36.

The AOD explicitly accused the Corporate Defendants of violating the FTC and

FDCPA.

After executing the document, Briandi nonetheless continued to oversee

the Corporate Defendantsʹ collection activities. As the magistrate judge pointed

out, the FTC found ʺnumerous consumer complaints in Briandiʹs personal office.ʺ

Id;

, at *40. Briandi was thus aware of consumer

complaints against the Corporate Defendants made to the New York Attorney

General, the Better Business Bureau, and the FTC, complaints that numbered

well into the hundreds.

To be sure, Briandi testified, as noted above, that beginning in March 2013,

he neglected his managerial duties in favor of prayer and other spiritual pursuits.

But he alleged that he began to neglect these managerial duties only after

personally executing the AOD, in which he agreed to take measures to address

the Corporate Defendantsʹ deceptive conduct; and he did so after executing an

affidavit in which he represented that he had implemented procedures —

including the hiring of a ʺcompliance officerʺ — to ensure that the Corporate

21

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Defendants met the requirements of the FDCPA. Therefore, when, according to

Briandi, he retreated into spiritual pursuits at the expense of his managerial

duties, he was not only on notice that the Corporate Defendants had been

violating the FDCPA; he had taken on a personal duty to correct the Corporate

Defendantsʹ misbehavior. Briandiʹs withdrawal under these circumstances is at

least evidence of reckless indifference to the Corporate Defendantsʹ deceptive

conduct after the 2013 AOD. See Primary Grp., 713 F. Appʹx at 807.

We also agree with the district court that Briandi had knowledge of the

Corporate Defendantsʹ unlawful conduct prior to the 2013 AOD. Fed. Check

Processing, Inc.,

, at *1,

at *6 (ʺAt all

times material to the Complaint . . . Defendant Mark Briandi . . . had actual or

constructive knowledge of the violative acts and practicesʺ (emphasis added)).

ʺ[T]he degree of participation in business affairsʺ is a relevant factor in

determining whether Briandi had knowledge of the Corporate Defendantsʹ

wrongful actions. Amy Travel,

. Here, that factor is dispositive.

Briandi served as the Corporate Defendantsʹ co‐director and general manager. In

performing that role, Briandi was intimately involved with the unlawful

activities at issue: the collection calls. The evidence before the magistrate judge

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and district court established that Briandi maintained a personal desk in the call

center itself, which, he conceded, he visited at least daily. Adrian Fronczak, a

former employee of the Corporate Defendants, testified in a deposition that

Briandi sat at the desk ʺprobably half the day.ʺ Fronczak Dep. 44. Fronczak also

testified that Briandi and Moses would take over calls if asked to do so by one of

the debt collectors.

at 44‐45.

Far from demonstrating that the testimony was false, Briandi essentially

corroborated it in his own deposition. There he admitted that he would take

over from employees calls with hostile debtors, but said that he did so less

frequently after he signed the AOD and became more engaged in his religious

practices. According to his testimony, then, he was even more involved with the

debt collection calls prior to the 2013 AOD. Indeed, Briandi made some of the

more offensive collection calls himself; they were mentioned in nine consumer

complaints filed before the AOD was executed. The magistrate judge and district

court thus had ample evidence upon which to conclude that Brandi had

knowledge of the Corporate Defendantsʹ violations both before and after he

executed the AOD.

23

16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

IV. FTC Disgorgement

Finally, Briandi argues that the FTCʹs request that he be ordered to

disgorge $10,852,396, which was adopted by the magistrate judge and confirmed

by the district court, was grossly excessive. Briandi asserts that the FTCʹs

calculation was predicated on ʺapproximately 45 calls where it claimed that

fraudulent claims were made,ʺ which is ʺa far cry from the courtʹs finding that

the entire operation was ʹpermeated with fraud.ʹʺ Briandi Br. 30‐31 (quoting Fed.

Check Processing, Inc.,

, at *12,

, at

*48). Therefore, Briandi contends, ʺthere was no basis to find that [he] should be

[held] responsible for the entire amount of all the debt collected over [the]

approximately four year period.ʺ Briandi Br. 34.

Section 13(b) of the FTCA provides that ʺin proper cases the [FTC] may

seek, and after proper proof, the court may issue, a permanent injunction.ʺ

(b). Although we have acknowledged that ʺthe provisionʹs express

text refers only to injunctive relief,ʺ we have also held that the ʺunqualified grant

of statutory authority to issue an injunction under [S]ection 13(b) carries with it

the full range of equitable remedies, including the power to grant consumer

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16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

redress and compel disgorgement of profits.ʺ FTC v. Bronson Partners, LLC,

(2d Cir. 2011) (internal quotation marks omitted).

We have adopted a ʺtwo‐step burden‐shifting framework for calculating

equitable monetary relief. That framework requires a court to look first to the

FTC to ʹshow that its calculations reasonably approximated the amount of the

defendant[sʹ] unjust gainsʹ and then shift the burden ʹto the defendants to show

that those figures were inaccurate.ʹʺ

at 364 (quoting Verity Intʹl, 443 F.3d at

67).

To obtain equitable monetary relief, the FTC must also demonstrate that

consumers relied on the misrepresentations at issue. Because ʺrequir[ing] proof

of each individual consumerʹs reliance on a defendantʹs misrepresentations

would be an onerous task with the potential to frustrate the purpose of the FTCʹs

statutory mandate,ʺ we concluded in FTC v. BlueHippo Funding, LLC,

(2d Cir. 2014), that ʺthe FTC is entitled to a presumption of consumer

reliance upon showing that (1) the defendant made material misrepresentations

or omissions that were of a kind usually relied upon by reasonable prudent

persons; (2) the misrepresentations or omissions were widely disseminated; and

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16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

(3) consumers actually purchased the defendantsʹ products.ʺ

(alteration in

original; internal quotation marks omitted).

Here, in support of its motion for summary judgment, the FTC submitted

more than five hundred consumer complaints regarding the defendantsʹ debt

collection practices, aggressive collection telephone scripts located in fifteen of

the twenty‐six Corporate Defendantsʹ collection cubicles, and audio recordings of

twenty‐one of the twenty‐five employee debt‐collectors falsely telling consumers

that the employees were law enforcement personnel or ʺprocessors.ʺ There is

thus ample proof that the misrepresentations at issue were widely disseminated.

Briandi argues that those consumer complaints are inadmissible at the

summary judgment stage. But he explicitly waived that challenge in the district

court. As the magistrate judge correctly noted:

The defendants do not argue that the FTCʹs evidence (e.g., telephone calls, scripts, consumer complaints) is inadmissible, and their failure to do so may be construed as a waiver of any such argument. DeCintio v. Westchester Cnty. Med. Ctr.,

(2d Cir. 1987).

Fed. Check Processing, Inc.,

, at *2 n.6,

, at *8‐9 n.6.

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16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

Moreover, the case that Briandi relies on for the proposition that it is

inappropriate to admit consumer complaints in support of a motion for

summary judgment, FTC v. Washington Data Resources, No. 8:09‐cv‐2309,

,

(M.D. Fla. July 7, 2011), was a district court

decision without precedential effect that rejected the use of consumer complaints

as a substitute for trial testimony, rather than in summary judgment proceedings.

Finally, even excluding consideration of these complaints, it is clear from

the voluminous audio recordings and collection scripts submitted to the

magistrate judge by the FTC that the magistrate judge did not err in concluding –

nor did the district court in adopting the conclusion – that the defendantsʹ

operation was ʺpermeated with fraud.ʺ Fed. Check Processing, Inc.,

at *12,

, at *37.

The FTC has thus shown that it was entitled to a presumption of reliance.

And when the FTC establishes such a presumption, it can ʺuse[] the defendantsʹ

gross receipts as a baseline for calculating damagesʺ at the first step of the

burden‐shifting framework. BlueHippo Funding, LLC,

. That is

exactly what the FTC did here. If the defendant wanted to attempt to refute the

FTCʹs calculation, he had the burden to do so before the magistrate judge or the

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16‐3811‐cv, 16‐3805‐cv Federal Trade Commission v. Federal Check Processing, Inc, et al.

district court. See Verity Intʹl, 443 F.3d at 67 (noting that burden‐shifting

framework requires ʺthe FTC to first show that its calculations reasonably

approximated the amount of the defendantʹs unjust gains, after which the burden

shifts to the defendants to show that those figures were inaccurateʺ (internal

quotation marks omitted)). The defendant chose not to submit any proof that the

debt corporations earned ʺall or some of their revenue through lawful means.ʺ

Fed. Check Processing, Inc.,

, at *16,

,

at *48; see also

, at *49 (ʺHad [the defendants

challenged the accuracy of the FTCʹs figures] a hearing may have been required

to determine the amount of disgorgement.ʺ) Accordingly, we conclude that it

was appropriate for the district court to award the disgorgement in the amount

sought by the FTC.

CONCLUSION We have considered the appellantsʹ remaining arguments on appeal and

conclude that they are without merit. For the foregoing reasons, we DISMISS

Mosesʹs appeal, and AFFIRM the remainder of the judgment of the district court.

28