11-374-cv FTC v. Bluehippo et al.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _____________________
August Term, 2011
(Argued: February 23, 2012 Decided: August 12, 2014)
Docket No. 11-374-cv
_____________________
FEDERAL TRADE COMMISSION,
Plaintiff–Appellant,
V.
BLUEHIPPO FUNDING, LLC, BLUEHIPPO CAPITAL, LLC, AND JOSEPH K. RENSIN,
Defendants–Appellees.1
Before: LEVAL, SACK, and HALL, Circuit Judges.
The Federal Trade Commission (“FTC”) appeals the damages portion of an order of the district court (Crotty, J.) granting, in part, the FTC’s motion for contempt relating to defendants’ violation of the Stipulated Final Judgment and Order of Permanent Injunction which enjoined the defendants from making any express or implied representations of material fact with respect to, inter alia, their store credit and refund policy. Arguing that it was entitled to a presumption that consumers relied, when deciding to purchase defendants’ products, on defendants’ omissions and misrepresentations, the FTC sought $14,062,627.51 in contempt damages, an amount equal to the defendants’ gross receipts, i.e., the gross sales generated through its contumacious conduct. The district court’s order is silent with regard to the presumption of reliance and plainly rejects the
1 The Clerk of Court is directed to amend the official caption as noted above. FTC’s damages calculation. We agree with the FTC and join our sister circuits in adopting a presumption of consumer reliance in FTC civil contempt actions. Accordingly, we vacate the district court’s order and remand for the district court to consider, in the first instance, whether the FTC has demonstrated that it is entitled to a presumption of consumer reliance. If so, the court should use defendants’ gross receipts as a baseline for calculating the consumers’ actual loss, and defendants should then be afforded an opportunity to proffer evidence showing that an offset of the baseline is warranted. Therefore, we VACATE the district court’s judgment and REMAND for further proceedings consistent with this opinion. _____________________
DAVID C. SHONKA, SR., Deputy Chief Counsel (Michael D. Bergman, James A. Kohm, Robert S. Kaye, Amanda C. Basta, on the brief) for Lawrence DeMille-Wagman, Assistant General Counsel for Litigation, John F. Daly, Deputy General Counsel for Litigation, and Willard K. Tom, General Counsel, United States Federal Trade Commission, Washington, DC for Plaintiff–Appellant.
MARTIN S. HIMELES, JR. (John J. Connolly, on the brief) Zuckerman Spaeder LLP, Baltimore, MD for Defendants–Appellees. _____________________
HALL, Circuit Judge:
The Federal Trade Commission (“FTC”) appeals the damages portion of a July 27, 2010
order of the District Court for the Southern District of New York (Paul A. Crotty, Judge) granting,
in part, the FTC’s motion for contempt relating to defendants-appellees’ (BlueHippo Funding,
LLC, BlueHippo Capital, LLC (collectively “BlueHippo”), and Joseph K. Rensin, the CEO of the
BlueHippo entities) violation of a Stipulated Final Judgment and Order of Permanent Injunction
(the “Consent Order”). The FTC and BlueHippo had previously entered into the Consent Order
to resolve an action initiated by the FTC against BlueHippo for violating section 5(a) of the
Federal Trade Commission Act, codified at 15 U.S.C. § 45(a) (“FTC Act”). The Consent Order
enjoined the defendants from making any express or implied misrepresentations of material fact
with respect to, inter alia, their store credit and refund policy.
2 In its contempt motion the FTC sought damages for BlueHippo’s alleged violation of the
Consent Order by failing to disclose, at the time of purchase, material details concerning
BlueHippo’s store credit policy. The FTC argued that it was entitled to a presumption that
consumers relied, when deciding to purchase defendants’ products, on defendants’ omissions and
misrepresentations. Accordingly, it sought $14,062,627.51 in contempt damages, an amount
equal to the defendants’ gross receipts, i.e., the gross sales generated through its contumacious
conduct. The district court granted the FTC’s motion for contempt, but awarded damages only
with regard to consumers who complied with BlueHippo’s payment requirements and thus
qualified for but never received the promised computer. The court’s order is silent with regard to
the presumption of reliance and plainly rejects the FTC’s damages calculation. The FTC filed a
motion seeking an amendment or modification to the July 27 order to reflect the damages
associated with all customer orders placed during the period of BlueHippo misrepresented or
omitted information concerning its store credit and refund policy. The district court denied the
motion and the FTC appealed.
BACKGROUND
A. The FTC’s Preceding Direct Action
BlueHippo marketed computers and electronic products to consumers, regardless of their
credit history. Prospective customers wishing to order a computer through BlueHippo would call
a toll-free number, listen to a sales pitch, place their order, and provide relevant financial details.
The premise of BlueHippo’s sales pitch was if a customer made thirteen consecutive installment
payments and signed an installment contract, BlueHippo would then ship a computer and allow the
consumer to finance the remaining balance owed. If the customer skipped a payment, he or she
would not qualify for financing but could continue to pay off the computer on a layaway program
3 or convert the previous payments to store credit for the purchase of other merchandise from
BlueHippo’s online store.
With respect to the store credit and refund policy (the conduct relevant to this appeal), at
the time of purchase BlueHippo informed consumers that they were entitled to cash refunds within
the initial seven-day period after placing an order, and after that customers could cancel their
orders and obtain a store credit for BlueHippo’s online store. However, when consumers agreed
to purchase a computer and entered into an installment contract, BlueHippo failed to disclose that
store credits could not be applied to shipping and handling fees or tax charges, or that only one
online store order could be placed at a time. BlueHippo would not inform a consumer about these
restrictions until the consumer attempted to make a purchase with store credit.
In February 2008, the FTC filed a complaint in the Southern District of New York against
BlueHippo Funding LLC and BlueHippo Capital. The complaint alleged that BlueHippo, in its
advertising, sales pitches, and representations to consumers, had engaged in persistent practices of
deception since 2003 in violation of Section 5(a)(1) of the FTC Act, 15 U.S.C. § 45(a)(1).2
Pursuant to 15 U.S.C. § 53(b), the FTC sought permanent injunctive relief and disgorgement of the
proceeds BlueHippo had obtained through these allegedly deceptive practices. In April 2008, the
parties resolved the suit through entry of the Consent Order.
2 The first count alleged that BlueHippo represented to consumers that it would ship products within a particular time frame when, in fact, these consumers did not receive the products purchased within the represented timeframe, if at all. The second count alleged that BlueHippo failed to disclose to consumers that payments made as part of a plan for the purchase of computers and electronics goods were nonrefundable, even if the consumer never received the purchased product. The complaint also alleged violations of the Mail Order Rule under regulations promulgated pursuant to the FTC Act, violations of the Truth in Lending Act and associated regulations, and violations of the Electronic Fund Transfer Act and associated regulations. These alleged violations are not at issue in the present appeal. 4 B. The FTC’s Contempt Action & the District Court’s Contempt Ruling
Based on compliance materials provided by BlueHippo, the FTC moved in late 2009 for an
order to show cause why both BlueHippo and its CEO, Joseph Rensin, should not be held in civil
contempt for violation of the Consent Order.3 Based on its assertion that the FTC had violated the
Consent Order, the FTC sought $14,062,627.51 in damages on behalf of 55,892 customers.4
On July 27, 2010, the district court issued a written ruling holding BlueHippo in contempt
and finding that Rensin was jointly and severally liable for any damages. The district court found
that BlueHippo had violated the Consent Order through (1) failing to provide computers for 1348
orders within the promised three week time frame; (2) failing to provide either a computer or store
credit merchandise for 677 orders; (3) failing to disclose details of the store credit policy to
consumers; and (4) conditioning the extension of credit on mandatory preauthorized transfers. It
calculated damages in the amount of $609,856.38, basing this figure on the consumers who had
qualified for BlueHippo’s financing plan but had thereafter received neither a computer nor store
credit. Order Granting Plaintiff’s Motion for Contempt at 10, FTC v. BlueHippo, No. 08cv-1819
(PAC), (S.D.N.Y. July 27, 2010), ECF No. 76. As for BlueHippo’s remaining violations, the
3 The Consent Order does not name Rensin as a party nor did he sign it on behalf of BlueHippo. At the time of the contempt hearing, BlueHippo had filed for bankruptcy and the trustee declined to participate in the evidentiary hearing, relying on its written submission instead. Rensin, however, presented his case to the district court in the evidentiary hearing and argued for limiting BlueHippo’s liability as well limiting his own to the monies he actually received. Ultimately the district court found Rensin and BlueHippo jointly and severally liable for contempt damages. Rensin does not appeal that determination and BlueHippo, through its trustee, declined to participate in this appeal. 4 The FTC asserted BlueHippo violated the Consent Order in six ways: (1) by misrepresenting that it was in the business of financing computers; (2) by misrepresenting that consumers who qualified for financing would receive computers; (3) by misrepresenting that BlueHippo would ship computers to such customers within four weeks of their qualifying for financing; (4) by misrepresenting that consumers who ordered merchandise through the online store would actually receive the merchandise; (5) by failing to disclose in their store credit policy that consumers needed to pay additional monies to cover shipping and handling fees as well as taxes; and (6) by conditioning the extension of credit on mandatory preauthorized transfers. Memorandum of Law in Support of Plaintiff’s Order to Show Cause at 16–21, FTC v. BlueHippo, No. 08cv-1819 (PAC) (S.D.N.Y. Nov. 17, 2009), ECF No. 43. 5 district court concluded that the FTC “conceded [] it has failed to provide record evidence
approximating damages to consumers.”
The FTC accepted the court’s finding of liability but moved for reconsideration on the
issue of damages with respect to the misrepresentations BlueHippo made regarding its store credit
policy.5 The district court denied that motion, and the FTC initiated this appeal.
Discussion
On appeal, the FTC asserts that the district court committed an error of law when it: (1)
failed to take into account the express language of the Consent Order which establishes the time of
injury as the moment the consumers sign up to buy a computer without having received all the
material terms of the agreement; (2) failed to apply the presumption of consumer reliance and
harm in an FTC civil contempt action; and (3) erroneously concluded that the FTC conceded that it
had failed to prove damages associated with misrepresentations and omissions concerning the
store credit and refund policy. We agree with the FTC and join our sister circuits in holding today
that the FTC is entitled, when the proper showing has been made, to a presumption of consumer
reliance. Because the district court’s opinion and order does not reflect the application of this
principle, we vacate the district court’s July 27, 2010 order as to damages, and remand for the
district court to consider, in the first instance, whether the requirements for this presumption have
been met. Additionally, we agree with the FTC that the appropriate baseline for assessing
contempt damages, i.e., the actual loss to consumers as a result of the defendants’ contumacious
conduct, is the defendants’ gross receipts. That baseline damages calculation is rebuttable, and
the district court, on remand, should therefore consider whether defendants have proffered
5 The FTC does not challenge the district court’s denial of recompense for BlueHippo’s failure to fulfill 1348 computer orders within a three week time frame, and BlueHippo’s conditioning of their extension of credit on mandatory preauthorized transfers. Appellant’s Br. 14–15 n.12. 6 sufficient evidence demonstrating that the baseline consumer loss should be offset and, if so, by
how much.
A. Standard of Review
“We review the district court’s conclusions of law de novo and its factual findings for clear
error.” FTC v. Verity Int’l, Ltd., 443 F.3d 48, 63 (2d Cir. 2006). “We review a finding of
contempt under an abuse of discretion standard that is more rigorous than usual . . . .” S. New
England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 145 (2d Cir. 2010) (internal quotation marks
omitted).
B. FTC Civil Contempt Actions
Before addressing the FTC’s arguments on appeal, we must answer a threshold question:
whether the FTC can seek contempt damages on behalf of consumers when the defendant has
violated a lawful Consent Order and Permanent Injunction. Section 13 of the FTC Act empowers
the FTC to seek redress on behalf of injured consumers. 15 U.S.C. § 53; see FTC v. Figgie Int’l,
Inc., 994 F.2d 595, 605 (9th Cir. 1993) (per curiam) (“Section 13 serves a public purpose by
authorizing the Commission to seek redress on behalf of injured consumers.” (internal quotation
marks omitted)). We agree with the Tenth Circuit that “no reason exists to believe Congress
intended to withhold the traditional remedy of compensation to those consumers victimized by
defendants’ violations of [a] Permanent Injunction,” or in this case, a Consent Order. FTC v.
Kuykendall, 371 F.3d 745, 764 (10th Cir. 2004) (en banc); see also FTC v. Febre, 128 F.3d 530,
536 (7th Cir. 1997) (noting that a primary purpose of the FTC Act is “to protect consumers from
economic injuries”). Accordingly, we think it clear that the FTC may pursue recovery for
contempt damages based on alleged violations of a Consent Order.
7 Civil contempt sanctions may either serve “to coerce future compliance” or to remedy any
harm caused by noncompliance. Weitzman v. Stein, 98 F.3d 717, 719 (2d Cir. 1996) (citing
United States v. United Mine Workers of America, 330 U.S. 258, 302–04 (1947)). A court enjoys
broad discretion in setting the amount of coercive sanctions. Paramedics Electromedicina
Comercial, Ltda v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 657 (2d Cir. 2004) (citing
Perfect Fit Indus. v. Acme Quilting Co., 673 F.2d 53, 57 (2d Cir.1982)). But a court is “not free to
exercise its discretion and withhold an order in civil contempt awarding damages, to the extent
they are established.” Vuitton et Fils S. A. v. Carousel Handbags, 592 F.2d 126, 130 (2d Cir.
1979). When the FTC seeks damages for contempt, therefore, a court should craft sanctions
aimed at least in part on making whole the victims of the contumacious conduct. Paramedics
Electromedicina Comercial, 369 F.3d at 658 (citing King v. Allied Vision, Ltd., 65 F.3d 1051, 1062
(2d Cir. 1995)); see McComb v. Jacksonville Paper Co., 336 U.S. 187, 193 (1949) (“The measure
of the court’s power in civil contempt proceedings is determined by the requirements of full
remedial relief.”).
C. Presumption of Consumer Reliance and Calculating Damages under the Presumption
Although the district court found that BlueHippo had violated the terms of the Consent
Order—an issue unchallenged on this appeal—the court limited damages to $609,856.38, rejecting
the FTC’s damage assessment of $14,062,627.51. The FTC challenges the district court’s
measure of damages under the circumstances presented here.
The injury to a consumer occurs at the instant of a seller’s misrepresentations, which taint
the consumer’s subsequent purchasing decisions. Figgie Int’l, Inc., 994 F.2d at 606; FTC v. Sec.
Rare Coin & Bullion Corp., 931 F.2d 1312, 1316 (8th Cir. 1991) (“To satisfy the reliance
requirement in actions brought under section 13(b) of the Act, the FTC need merely show that the
8 misrepresentations or omissions were of a kind usually relied upon by reasonable and prudent
persons.”); McGregor v. Chierico, 206 F.3d 1378, 1388 (11th Cir. 2000) (“Liability under the FTC
Act is predicated upon certain misrepresentations or misleading statements, coupled with action
taken in reliance upon those statements.”). Put alternatively, because the harm stems from the
initial misrepresentations, the injury occurs at the moment the seller makes those
misrepresentations. See Figgie Int’l, Inc., 994 F.2d at 606 (“The fraud in the selling . . . is what
entitles consumers . . . to full refunds[.]”); see also McGregor, 206 F.3d at 1388.
To require proof of each individual consumer’s reliance on a defendant’s
misrepresentations would be an onerous task with the potential to frustrate the purpose of the
FTC’s statutory mandate. Sec. Rare Coin & Bullion Corp., 931 F.2d at 1316 (noting that it would
be impossible for the FTC to provide proof of subjective reliance by each investor); McGregor,
206 F.3d at 1388 (“Proof of individual reliance by each purchasing customer is not a prerequisite
to the provision of equitable relief needed to redress fraud.”). Permitting a presumption of
reliance in FTC claims for contempt damages would thus further the Commission’s statutory
purpose to protect consumers. Noting the inherent difficulty of demonstrating individual harm in
FTC cases, the Eighth, Ninth, Tenth, and Eleventh circuits have applied a presumption of
consumer reliance that attaches to potential consumers at the instant of the initial
misrepresentation. See, e.g., Kuykendall, 371 F.3d at 765 (applying presumption in contempt
action); McGregor, 206 F.3d at 1388 (applying presumption in contempt action); see also Figgie
Int’l, Inc., 994 F.2d at 605–06 (applying presumption in FTC Section 19 action); Sec. Rare Coin &
Bullion Corp., 931 F.2d at 1316 (applying presumption in FTC Section 13 action). We join these
courts and hold that the 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
9 relied upon by reasonable prudent persons;” (2) the misrepresentations or omissions were widely
disseminated; and (3) consumers actually purchased the defendants’ products. Kuykendall, 371
F.3d at 765; see also McGregor, 206 F.3d at 1388; Figgie Int’l, Inc., 994 F.2d at 605–06; Sec. Rare
Coin & Bullion Corp., 931 F.2d at 1316.
Once the FTC makes a showing sufficient to trigger this presumption, the district court
must calculate damages to ensure that all of the consumers who were presumed to have relied on
the defendant’s misrepresentations receive “full compensation.” Kuykendall, 371 F.3d at 765–
66. The Tenth Circuit, in Kuykendall, and the Eleventh Circuit, in McGregor, held that the total
gross receipts from all consumers entitled to compensation should serve as the baseline for
calculating the actual loss to consumers caused by the defendants’ contemptuous conduct. See
id.; 206 F.3d at 1387–88; see also FTC v. Trudeau, 579 F.3d 754, 771 (7th Cir. 2009) (“Consumer
loss is a common measure for civil sanctions in contempt proceedings and direct FTC actions.”).
Those courts recognized that when an injury by misrepresentation or omission precedes a
purchase, the full amount paid by the injured consumer must serve as the baseline for calculating
damages because the “seller’s misrepresentations tainted the customer’s purchasing decisions,”
McGregor, 206 F.3d at 1388. In this Circuit we have previously characterized monetary loss in
an FTC direct action arising out of unfair misrepresentations to consumers as the defendant’s
“unjust gains.” See FTC v. Bronson Partners, 654 F.3d 359, 368–69 (2d Cir. 2011); Verity, 443
F.3d at 67. Here, in the context of a contempt action arising out of violations of a promise to
refrain from misrepresentations concerning material terms or omissions of material terms, we hold
that the calculation of the appropriate measure of loss begins with the defendants’ gross receipts
derived from such contumacious conduct. After the court uses the defendants’ gross receipts as a
baseline for calculating damages, the court must permit the defendants “to put forth evidence
10 showing that certain amounts should offset the sanctions assessed against them.” Kuykendall,
371 F.3d at 766.
To the extent that defendants argue that our Circuit precedent suggests rejecting a
presumption of consumer reliance, they misconstrue our prior holdings. Defendants rely chiefly
on FTC v. Verity International, Ltd., 443 F.3d 48 (2d Cir. 2006), which does not address the
presumption of reliance. Verity offers little guidance in this case, but insofar as it sheds light on
general principles of remedies in FTC cases, it nevertheless bolsters today’s holding. In that case,
the FTC brought a direct action against internet pornographers who wrongly billed telephone line
subscribers for internet access regardless of whether those subscribers had actually accessed the
pornographers’ websites. We held first that disgorgement, or equitable restitution, was the proper
measure of damages. Id. at 66. We then adopted a “two-step burden-shifting framework” for
calculating disgorgement, which “requires the FTC to first ‘show that its calculations reasonably
approximated’ the amount of the defendant's unjust gains, after which the ‘burden shifts to the
defendants to show that those figures were inaccurate.’” Id. (quoting Febre, 128 F.3d at 535).
Our holding today adheres to this framework. That we required a different method for calculating
disgorgement in Verity from that which we are endorsing today merely reflects the material factual
disparities between the two cases. See Verity, 443 F.3d at 66–69 (explaining that the restitution
award in that case should be calculated based on monies actually received, rather than the “full
amount lost by consumers,” because consumer dollars had passed through a middleman and
therefore defendants had not received the full amount consumers paid).
It is undisputed that BlueHippo was permanently enjoined from making material
misrepresentations to its customers about its store credit policy, and the Consent Order
affirmatively required BlueHippo to disclose all material conditions of their store credit refund
11 policy prior to receiving any money from consumers.6 BlueHippo, as the district court found and
the defendants do not dispute, violated the Consent Order. Based on the FTC’s proffered
evidence, the district court found that during the period of violation 62,673 customers made
purchases and 55,892 customers had not been compensated in any form. The district court noted
that at the time of these purchases BlueHippo informed these consumers that if they chose not to
have their purchases refunded within seven days of placing their order, they could cancel their
order later and obtain usable store credit. In making these representations, the district court
further observed, BlueHippo had conveniently omitted several material caveats accompanying
their store credit policy, namely, that store credit could only be used for one online store order at
time and could not be applied towards shipping and handling fees or taxes. Unfortunate
customers learned of these restrictions only after trying to use their credit.
This information, if it had been revealed to consumers before they purchased computers
from BlueHippo, in all likelihood would have influenced their purchasing decisions. Although
the district court noted these facts, the record does not reveal specifically whether the court applied
the presumption of consumer reliance in calculating damages. Indeed, despite the fact that the
FTC’s economic expert testified that the 55,892 customers to whom BlueHippo failed to provide
either a computer or store merchandise had suffered $14,062,627.51 in damages, the district court
6 The Consent Order states in pertinent part,
[Defendants] are permanently restrained and enjoined from . . . [m]aking any representation regarding any refund, cancellation, exchange or repurchase policy without disclosing clearly and conspicuously, prior to receiving any payment from customers all material terms and conditions of any refund, cancellation, exchange or repurchase policy, or if there is a policy of not making any refunds, cancellations, exchanges, or repurchases whatsoever, a statement informing the customer of such policy, prior to receiving any payment from customers[.]
Stipulated Final Judgment and Order of Permanent Injunction at 3–4, FTC v. BlueHippo, No. 08cv-1819 (PAC), (S.D.N.Y. April 10, 2008), ECF No. 2. 12 concluded that the FTC conceded it could not prove the credit policy damages. In light of this
discrepancy between the FTC’s evidence and the court’s finding, and in light of our recognizing
today a presumption of consumer reliance, the district court erred in not assessing, in the first
instance, whether the FTC demonstrated the prerequisite conditions entitling it to a presumption of
consumer reliance.
Because the district court did not specifically address the issue in this context, however, we
remand to allow that court to determine in the first instance that the FTC has established the
presumption appropriately applies on the facts of this case. If the court concludes that the FTC
has demonstrated the conditions necessary to establish a presumption of consumer reliance, it
should use the defendants’ gross receipts as a baseline for calculating the actual loss to consumers
caused by defendants’ conduct. Kuykendall, 371 F.3d at 766. The district court should then give
the defendants the opportunity to rebut the determined baseline loss calculation, allowing them to
“put forth evidence showing that certain amounts should offset the sanctions assessed against
them.” Id.
Conclusion
We VACATE that portion of the district court’s contempt order that has calculated
damages and REMAND the case to the district court for further proceedings consistent with this
opinion.