USCA4 Appeal: 22-2078 Doc: 41 Filed: 07/19/2023 Pg: 1 of 16
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-2078
FEDERAL TRADE COMMISSION,
Plaintiff - Appellee,
v.
KRISTY ROSS, individually, and as officer of Innovative Marketing, Inc.,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, Senior District Judge. (1:08-cv-03233-RDB)
Argued: May 3, 2023 Decided: July 19, 2023
Before DIAZ, Chief Judge, RUSHING, Circuit Judge, and FLOYD, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Floyd wrote the opinion in which Chief Judge Diaz and Judge Rushing joined.
ARGUED: Robert P. Greenspoon, DUNLAP, BENNETT & LUDWIG, Chicago, Illinois, for Appellant. Matthew Michael Hoffman, FEDERAL TRADE COMMISSION, Washington, D.C., for Appellee. ON BRIEF: William W. Flachsbart, DUNLAP, BENNETT & LUDWIG, Chicago, Illinois, for Appellant. Anisha S. Dasgupta, General Counsel, Joel Marcus, Deputy General Counsel, Matthew M. Hoffman, Miriam R. Lederer, FEDERAL TRADE COMMISSION, Washington, D.C., for Appellee. USCA4 Appeal: 22-2078 Doc: 41 Filed: 07/19/2023 Pg: 2 of 16
FLOYD, Senior Circuit Judge:
Defendant-Appellant Kristy Ross victimized over a million Americans by
furthering a country-wide “scareware” scam that tricked innocent computer users into
paying for unnecessary software to remedy entirely fabricated issues purported to plague
their devices. An apparent fugitive—having sought for years to evade paying even a cent
of the $163,167,539.95 in restitution ordered for her role in the scheme—Ross now seeks
vacatur of that aging monetary judgment. For the reasons that follow, we affirm.
I.
In the early 2000s, Ross was a vice president of Innovative Marketing, Inc.—a
company perpetrating a country-wide “scareware” scam that tricked more than one million
Americans into purchasing unnecessary software to fix computer issues that did not exist.
Ross helped to develop software advertisements and pop-ups that falsely represented to
viewers that their computers were infected by malicious software and viruses, contained
illegal pornography, or were about to suffer critical system failures. The advertisements
offered remedial software (for purchase) for the fraudulently represented issues. Costs of
the remedial software ranged anywhere from $30 to $100. Once purchased by desperate
device owners, not only did the software do nothing to fix the purported issues—those
issues never existed—but reputable computer-security vendors considered the fraudsters’
software to itself be harmful to purchasers’ devices. In the course of the scam, Ross and
her co-conspirators fraudulently accumulated more than $160 million. Reaping the fruits
of her duplicitous scheme, Ross enjoyed a lavish life with scam proceeds, frequenting Four
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Seasons resorts abroad and shopping at luxury retailers.
In 2008, the Federal Trade Commission (“FTC”) sued Ross, alleging that the
scareware scam violated Section 5(a) of the Federal Trade Commission Act (“FTC Act”),
15 U.S.C. § 45(a), which prohibits unfair or deceptive practices in or affecting commerce. 1
The FTC specifically sought relief via the FTC Act’s injunctive provision, Section 13(b),
15 U.S.C. § 53(b). Under that provision, the agency may seek to enjoin any entity from
conduct believed to be in violation of the Act. Tied to its request for statutory injunctive
relief via Section 13(b), the FTC also sought an equitable monetary judgment to fund
consumer redress.
In 2012, the case against Ross proceeded to a bench trial. See Fed. Trade Comm’n
v. Ross (Ross I), 897 F. Supp. 2d 369 (D. Md. 2012). The district court entered judgment
in favor of the FTC and against Ross. The court permanently enjoined and restrained
Ross’s participation in any “marketing [or] sale of computer security software and software
that interferes with consumers’ computer use as well as from engaging in any form of
deceptive marketing.” Id. at 389; J.A. 78. It also held her jointly and severally liable with
her co-defendants for consumer redress in the amount of $163,167,539.95. Ross I, 897 F.
Supp. 2d at 389.
Ross timely appealed. As relevant here, she argued that the district court lacked the
authority to impose an equitable monetary judgment under the FTC Act’s injunctive
provision—Section 13(b). This Court affirmed in 2014, joining every other circuit to
1 Notably, the FTC also sued many of Ross’s colleagues, but each either settled or defaulted. Ross is the only defendant who proceeded to trial. 3 USCA4 Appeal: 22-2078 Doc: 41 Filed: 07/19/2023 Pg: 4 of 16
address the issue (including the First, Second, Third, Seventh, Eighth, Ninth, Tenth, and
Eleventh) by holding that Section 13(b) impliedly granted district courts the authority to
award consumer redress as an equitable component of the injunctive provision. The Court
reasoned that “[a] ruling in favor of Ross would forsake almost thirty years of federal
appellate decisions and create a circuit split, a result that we will not countenance in the
face of powerful Supreme Court authority pointing in the other direction.” Fed. Trade
Comm’n v. Ross (Ross II), 743 F.3d 886, 892 (4th Cir. 2014). The Court further reasoned
that Ross’s argument “attempt[ed] to obliterate a significant part of the [FTC’s] remedial
arsenal.” Id. Notably, since this Court’s affirmance, Ross has not paid a penny toward
satisfying the monetary judgment for consumer redress. Resp. Br. 5. Her whereabouts are
unknown, and she is believed to have fled the United States. Id.
In April 2021—nearly a decade after the district court entered judgment against
Ross—the Supreme Court decided AMG Capital Management, LLC v. Federal Trade
Commission, 141 S. Ct. 1341 (2021). There, the Court wiped out the almost entirely
uniform approach of the federal circuits 2 to the question of whether Section 13(b)
authorized equitable monetary relief. Rather, the Court held that Section 13(b) authorized
only injunctive relief. AMG, 141 S. Ct. at 1349, 1352 (“[The FTC Act] does not grant the
[FTC] authority to obtain equitable monetary relief.”). Five months after the issuance of
the Supreme Court’s decision in AMG, Ross moved to vacate the restitution portion of the
2 In 2019—after this Court’s decision in Ross’s direct appeal but before AMG—the Seventh Circuit deviated from the rest of the federal circuits on the question of whether Section 13(b) permitted equitable monetary awards. See Fed. Trade Comm’n v. Credit Bureau Ctr., 937 F.3d 764 (7th Cir. 2019). 4 USCA4 Appeal: 22-2078 Doc: 41 Filed: 07/19/2023 Pg: 5 of 16
judgment against her. She argued that the equitable monetary judgment was void under
Federal Rule of Civil Procedure 60(b)(4) because of a perceived post-AMG jurisdictional
defect, and, additionally or alternatively, because “extraordinary circumstances” justified
vacatur under Rule 60(b)(6).
The district court denied Ross’s motion. See Fed. Trade Comm’n v. Ross (Ross III),
No. RDB-08-3233, 2022 WL 4236339, at *4 (D. Md. Sept. 14, 2022). Regarding Rule
60(b)(4), the court held that the monetary judgment was not void because the remedial
provisions of Section 13(b) are not jurisdictional in nature and because, at the time of
judgment, an arguable basis existed for the monetary remedy given that other circuits
uniformly permitted such a remedy under that provision. Id. at *3. Regarding Rule
60(b)(6), the court held that, in the Fourth Circuit, a subsequent change in law does not
amount to an “extraordinary circumstance” justifying relief. Id. at *4. The court further
declared that so much time had passed since the entry of judgment that the interest of
finality weighed heavily against a finding of extraordinary circumstances. Id. Ross timely
appealed.
II.
We review a district court’s denial of a Rule 60(b)(4) motion de novo. United States
v. Welsh, 879 F.3d 530, 533 (4th Cir. 2018) (citation omitted). Meanwhile, we review a
district court’s denial of relief sought under Rule 60(b)(6) for abuse of discretion. Id.
(citation omitted).
Importantly, an appeal of a district court’s denial of Rule 60(b) relief “does not bring
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up the underlying judgment for review.” Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir.
2011) (en banc) (citation omitted). “[A] fundamental precept of [] adjudication is that an
issue once determined by a competent court is conclusive.” Arizona v. California, 460
U.S. 605, 619 (1983) (citations omitted). This precept ensures “that there be an end of
litigation; that those who have contested an issue shall be bound by the result of the contest,
and that matters once tried shall be considered forever settled as between the parties.”
Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1981) (citation omitted).
Consequently, new decisions are given retroactive effect in “all cases still open on direct
review,” Harper v. Va. Dep’t of Tax’n, 509 U.S. 86, 97 (1993), but they “do not apply to
cases already closed,” Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 758 (1995). To be
sure, Rule 60(b) allows district courts to reopen a judgment post-direct appeal in “a limited
set of circumstances,” and it is meant to “make an exception to finality.” Gonzalez v.
Crosby, 545 U.S. 524, 528–29 (2005). But this exception to finality is not to be abused.
See Aikens, 652 F.3d at 501 (“[A] very strict interpretation of Rule 60(b) is essential if the
finality of judgments is to be preserved.” (quoting Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 873 (1988) (Rehnquist, C.J., dissenting))). We consider Rule 60(b)(4)
and (b)(6) in turn.
A.
Beginning with Rule 60(b)(4), Ross argues that the monetary relief portion of the
district court’s judgment should be deemed void in light of AMG because that decision
deprived the FTC of Article III standing to seek such relief, thereby stripping the district
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court of subject matter jurisdiction. See, e.g., Opening Br. 13 (“[T]he district court lacked
subject matter jurisdiction (for want of standing by the FTC) to order monetary relief.”).
In other words, Ross seems to contend that because AMG wiped out a particular remedy,
the FTC had no right to pursue it as a form of redress—redressability being a necessary
component of Article III standing, and standing being a necessary component of subject
matter jurisdiction. She further argues that the arguable-basis test does not apply to excuse
any jurisdictional defect, and, even if it did, that there was no arguable basis for the district
court’s decision to exercise jurisdiction here.
The FTC first disputes whether AMG’s novel interpretation of a statutory remedy
even relates to jurisdictional or standing analyses in the manner that Ross claims. The FTC
also responds that the district court properly exercised jurisdiction over the claim and
properly recognized the FTC’s standing to assert it. Finally, the FTC argues that even if
the district court erred, and we perceive AMG as retroactively narrowing jurisdiction and/or
standing, the arguable-basis test excuses any defect. Rather, according to the FTC, an
arguable basis supported a finding of standing at the time of judgment, so Rule 60(b)(4)
voidness cannot apply now.
Rule 60(b)(4) provides that “[o]n motion and just terms, the court may relieve a
party or its legal representative from a final judgment . . . [if] the judgment is void.” “[A]
void judgment is one so affected by a fundamental infirmity that the infirmity may be raised
even after the judgment becomes final.” United Student Aid Funds, Inc. v. Espinosa, 559
U.S. 260, 270 (2010). But the list of “infirmities” triggering voidness “is exceedingly
short[,] otherwise[] Rule 60(b)(4)’s exception to finality would swallow the rule.” Id. For
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example, “[a] judgment is not void . . . simply because it is or may have been erroneous.”
Id. (simplified).
Certain jurisdictional defects do give rise to colorable voidness arguments. See id.
at 271. But, as the Supreme Court commented in Espinosa, “[f]ederal courts considering
Rule 60(b)(4) motions that assert a judgment is void because of a jurisdictional defect
generally have reserved relief only for the exceptional case in which the court that rendered
judgment lacked even an ‘arguable basis’ for jurisdiction.” Id. (quoting Nemaizer v. Baker,
793 F.2d 58, 65 (2d Cir. 1986)); see also United States v. Boch Oldsmobile, Inc., 909 F.2d
657, 661–62 (1st Cir. 1990) (“[T]otal want of jurisdiction must be distinguished from an
error in the exercise of jurisdiction, and . . . only rare instances of a clear usurpation of
power will render a judgment void.” (simplified)). Although the Supreme Court in
Espinosa declined to reach precisely what constitutes a jurisdictional defect worthy of
voidness relief under Rule 60(b)(4), and it did not itself expressly adopt the arguable-basis
test, this Court seems to have done so. See United States v. Welsh, 879 F.3d 530, 533–34
(4th Cir. 2018); see also Wendt v. Leonard, 431 F.3d 410, 413 (4th Cir. 2005) (“[C]ourts
must look for the rare instance of a clear usurpation of power [which is] only when there
is a total want of jurisdiction and no arguable basis on which it could have rested a finding
that it had jurisdiction.” (simplified)).
We preface our analysis of Ross’s position with a clarification. Ross haphazardly
invokes jurisdictional language throughout her briefing. For example, in her jurisdictional
statement, she offers that “[t]he district court had jurisdiction over the FTC’s request for
injunctive relief under 13(b) of the FTC Act, 15 U.S.C. § 53(b), a federal question under
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28 U.S.C. § 1331.” Opening Br. 3. She then proceeds to declare that “the district court
lacked subject matter jurisdiction (for want of standing by the FTC) to order monetary
relief.” Id. at 13. But the Supreme Court has declared that “the question [of] whether a
court has jurisdiction to grant a particular remedy is different from the question [of]
whether it has subject matter jurisdiction over a particular class of claims.” Biden v. Texas,
142 S. Ct. 2528, 2540 (2022). It seems to us beyond reasonable dispute that the district
court possessed subject matter jurisdiction given the FTC’s allegations under 15 U.S.C.
§ 45(a)—i.e., a federal question. See 28 U.S.C. § 1331 (“The district courts shall have
original jurisdiction of all civil actions arising under the . . . laws . . . of the United States.”).
Although constitutional standing certainly implicates federal jurisdiction given its
cruciality to justiciability, we decline to construe Ross’s position as implicating the district
court’s subject matter jurisdiction over claims brought under the FTC Act. Thus, we treat
Ross’s jurisdictional argument as only challenging the FTC’s Article III standing to pursue
the equitable monetary remedy in the original action.
As relevant here, the “irreducible constitutional minimum” of Article III standing
consists of three elements. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “The
plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (citations omitted).
To begin, the parties dispute whether AMG truly implicates standing or instead
represents only a merits consideration. See Resp. Br. at 15 (noting that the Supreme Court
did not invoke standing or jurisdictional considerations in AMG). We need not decide this
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issue. Assuming, arguendo, that AMG would undermine the FTC’s standing to pursue
restitution in a similar case today, this Court applies the arguable-basis test, and an arguable
basis clearly supported the FTC’s standing when the court below decided Ross’s case. See
Welsh, 879 F.3d at 533–34; Wendt, 431 F.3d at 413.
This Court has previously held that the mere disagreement of multiple authorities
on a given issue evinced that an arguable basis for the competing perspectives existed. See
Wendt, 431 F.3d at 414. At the time of judgment in Ross’s case, every circuit to consider
whether Section 13(b) impliedly permitted a district court to impose equitable monetary
redress answered that question in the affirmative. See, e.g., Fed. Trade Comm’n v. Direct
Mktg. Concepts, Inc., 624 F.3d 1, 15 (1st Cir. 2010); Fed. Trade Comm’n v. Bronson
Partners, LLC, 654 F.3d 359, 365 (2d Cir. 2011); Fed. Trade Comm’n v. Mag. Sols., LLC,
432 F. App’x 155, 158 n.2 (3d Cir. 2011); Fed. Trade Comm’n v. Amy Travel Serv., Inc.,
875 F.2d 564, 571–72 (7th Cir. 1989), overruled by Credit Bureau Ctr., 937 F.3d 764; Fed.
Trade Comm’n v. Sec. Rare Coin & Bullion Corp., 931 F.2d 1312, 1316 (8th Cir. 1991);
Fed. Trade Comm’n v. Pantron I Corp., 33 F.3d 1088, 1102 (9th Cir. 1994); Fed. Trade
Comm’n v. Freecom Commc’ns, Inc., 401 F.3d 1192, 1202 n.6 (10th Cir. 2005); Fed. Trade
Comm’n v. Gem Merch. Corp., 87 F.3d 466, 468–70 (11th Cir. 1996).
It was not until 2019 that the first federal circuit, the Seventh, deviated from this
approach, see Credit Bureau Ctr., 937 F.3d at 786, and it was not until 2021 that the
Supreme Court resolved the short-lived circuit split in the Seventh Circuit’s favor, AMG,
141 S. Ct. at 1352. Thus, at the time of Ross’s bench trial and on direct appeal—both
having taken place many years before the split even arose between the Seventh Circuit and
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the overwhelming majority of its sister circuits—there was virtually no doubt that the
approach eventually adopted by the Supreme Court in AMG was decidedly wrong.
Certainly, when perfect unanimity among the circuits supports a particular position,
that position appears less arguable than it does unquestionable. Acknowledging that the
Supreme Court did indeed alter the national approach to Section 13(b) in AMG—and we
abide by that alteration absolutely—to have denied the FTC an equitable monetary remedy
in 2012 would have seemed less a judgment call on an arguable issue, and more an abuse
of discretion deviating from overwhelming national consensus. See Fed. Trade Comm’n
v. Hewitt, 68 F.4th 461, 466 (9th Cir. 2023) (rejecting appellant’s argument of jurisdictional
voidness post-AMG because the prevailing national approach at the time of adjudication
recognized a monetary remedy under Section 13(b), thus a “colorable basis” for jurisdiction
existed).
Thus, regardless of how we perceive Ross’s argument today—as implicating subject
matter jurisdiction, standing, merits issues, or a combination of these—an arguable basis
clearly supported the judgment imposed, and it cannot be said that there was a “total want
of jurisdiction” or a “clear usurpation of power” such that any defect renders the judgment
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void under Rule 60(b)(4). 3, 4, 5
B.
Ross alternatively seeks vacatur via Rule 60(b)’s catch-all provision, which permits
relief when justified but not otherwise covered by an expressly enumerated portion of the
rule. She contends that a change in controlling law justifies relief. She likewise argues
that relief is warranted because she diligently raised the same arguments on direct appeal
that AMG eventually vindicated. The FTC responds that a change in controlling law does
3 We decline to temporally couch our application of the arguable-basis test in the present as Ross implies we must. See, e.g., Opening Br. 27 (“Because there is no unresolved circuit split today, there is no arguable basis for the error exposed by . . . AMG.”) (emphasis added). This Court declared in Welsh that Rule 60(b)(4) voidness only applies “when there is a total want of jurisdiction and no arguable basis on which it could have rested.” 879 F.3d at 533–34 (emphasis added) (simplified). Tellingly, Welsh did not declare that the arguable-basis test entails considering whether a basis exists on which jurisdiction can rest. Rather, its use of the modal past tense confirms the appropriateness of past perspective, and to apply the test with the benefit of either contemporary knowledge or a past presumption of perfect foresight would make little sense. 4 This Court recently vacated an equitable monetary judgment in light of AMG, framing a portion of its analysis as it related to certain defaulted defendants under Rule 60(b). See Fed. Trade Comm’n v. Pukke, 53 F.4th 80, 106–07 (4th Cir. 2022). But despite this Court’s invocation of Rule 60(b) as applied to the defaulted defendants, that matter was still open on direct appeal. See id. It did not implicate the same finality concerns present here, and we decline to find it controlling. 5 Ross relies heavily on Compton v. Alton S.S. Co., Inc., 608 F.2d 96 (4th Cir. 1979), for the proposition that we should not engage in an arguable-basis inquiry when considering Rule 60(b)(4) voidness. Setting aside our more recent decisions in Wendt and Welsh, Compton did not foreclose our application of the arguable-basis test. Rather, there, this Court concluded that vacatur of judgment was warranted “when unquestionably there was no basis whatsoever either in fact or in law for such a judgment.” Compton, 608 F.2d at 107. In short, Compton vacated judgment based on an improper application of then- existing law—it did not consider the retroactive application of a novel interpretation ten years post-judgment. 12 USCA4 Appeal: 22-2078 Doc: 41 Filed: 07/19/2023 Pg: 13 of 16
not justify relief, nor does the fact that the Supreme Court eventually vindicated the
position she took on direct appeal. The FTC concludes that her aggregated circumstances
are not sufficiently extraordinary to warrant vacatur, and that the district court properly
exercised its discretion in denying her motion.
Rule 60(b)(6) provides that “[o]n motion and just terms, the court may relieve a
party or its legal representative from a final judgment [for] . . . any [] reason that justifies
relief.” But relief under this catch-all provision is only available when a movant
demonstrates “extraordinary circumstances.” Gonzalez, 545 U.S. at 536. In evaluating
whether circumstances are sufficiently extraordinary to justify relief, a district court must
“delicately balance the sanctity of final judgments, expressed in the doctrine of res judicata,
and the incessant command of the court’s conscience that justice be done in light of all the
facts.” Welsh, 879 F.3d at 536 (simplified).
“It is hardly extraordinary” when the Supreme Court arrives “at a different
interpretation” of a particular issue than lower courts after a case is no longer pending.
Gonzalez, 545 U.S. at 536; see also Agostini v. Felton, 521 U.S. 203, 239 (1997)
(“Intervening developments in the law by themselves rarely constitute the extraordinary
circumstances required for relief under Rule 60(b)(6) . . . .”); United States v. Salas, 807 F.
App’x 218, 229–30 (4th Cir. 2020) (applying Gonzalez and Agostini to affirm denial of
vacatur under Rule 60(b)(6)). Further, “[i]t is not extraordinary for the Supreme Court to
deny certiorari in a court of appeals case that it ultimately overrules in the review of a later
similar case.” United States ex rel. Garibaldi v. Orleans Par. Sch. Bd., 397 F.3d 334, 339
(5th Cir. 2005).
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Here, the Supreme Court’s novel position in AMG is not sufficiently extraordinary
to justify vacatur under the Rule 60(b) catch-all. A conclusion that such a circumstance
justifies vacatur would effectively eviscerate finality interests and open the floodgates to
newly meritorious 60(b)(6) motions each time the law changes. See Moses v. Joyner, 815
F.3d 163, 168–69 (4th Cir. 2016) (“[A] change in decisional law subsequent to a final
judgment provides no basis for relief under Rule 60(b)(6).” (simplified)).
Further, the fact that Ross raised the arguments on direct appeal that the Supreme
Court eventually vindicated in AMG similarly fails to justify vacatur. This position is
effectively a repackaging of Ross’s argument that a change in decisional law is sufficiently
extraordinary. She offers no precedent of this Court suggesting that past advocates may
benefit from post-judgment changes in decisional law simply because those changes
correspond with prior advocacy. 6 And, as above, such an approach would undermine
bedrock finality interests. The approach could likewise generate strange post-judgment
disparities between litigants based solely on litigation tactics—and without regard for the
relationship between previously existing law and one’s own culpability.
Ultimately, though, even if we concluded that Ross’s advocacy on direct appeal
warranted some favorable treatment for purposes of the Rule 60(b)(6) analysis, the district
court did not abuse its broad discretion given the totality of the circumstances. To be sure,
6 Diligence on direct appeal has been recognized as a relevant consideration to Rule 60(b)(6). See, e.g., Gonzalez, 545 U.S. at 537–38; Hewitt, 68 F.4th at 468–69; Phelps v. Alameida, 569 F.3d 1120, 1136–37 (9th Cir. 2009). But we have no reason to believe that diligence alone is sufficient to justify relief, nor that it outweighs other interests at play here. 14 USCA4 Appeal: 22-2078 Doc: 41 Filed: 07/19/2023 Pg: 15 of 16
in the wake of AMG, we now know that restitution was not congressionally authorized
under Section 13(b). But, as the Ninth Circuit has noted, “the fact that our understanding
of Congress’s will has changed is not itself extraordinary.” Hewitt, 68 F.4th at 469.
Furthermore, regardless of whether Congress intended Section 13(b) to impliedly authorize
an equitable monetary remedy, the FTC could have pursued “materially similar relief under
alternative remedial pathways” without resorting to that section. Hewitt, 68 F.4th at 470;
see also AMG, 141 S. Ct. at 1348–52 (discussing other mechanisms within the FTC Act—
including Sections 5 and 19—expressly facilitating consumer redress). Thus, Congress
clearly contemplated the availability of monetary redress under the Act, and the FTC’s use
of Section 13(b) to effectuate that redress is not inconsistent with high-level congressional
intent.
Moreover, although the monetary judgment here imposes crippling financial
liability on Ross, the severity of her unlawful conduct and her culpability therefor also
factor into our analysis. Hewitt, 68 F.4th at 470. Ross victimized over a million innocent
consumers, defrauding them to the tune of $163,167,539.95. Discussing her role in the
scheme, this Court previously explained that “Ross was actively and directly participating
in multiple stages of the deceptive advertising scheme—she played a role in design,
directed others to ‘add aggression’ to certain advertisements, was in a position of authority,
had the power to discipline entire departments, and purchased substantial advertising
space.” Ross II, 743 F.3d at 895. Such considerations disfavor relief.
Finally, Ross’s failure to abide by the monetary judgment—and her flight from the
United States—weighs against a finding of extraordinary circumstances. By all accounts,
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it appears as though she never intended to abide by the monetary judgment affirmed by this
Court nearly a decade ago. To now grant her relief would promote the conscious avoidance
of judgments with which litigants disagree—an affront to justice that we cannot condone—
in hopes of realizing some distant, future benefit. We will not reward Ross’s defiance with
a windfall.
Her aggregated circumstances are not extraordinary such that she is entitled to
vacatur under the Rule 60(b) catch-all, and the district court soundly exercised its discretion
in denying her such relief. This outcome is wholly consonant with our directive to
“delicately balance the sanctity of final judgments . . . and the incessant command of the
court’s conscience that justice be done in light of all the facts.” Welsh, 879 F.3d at 536
(simplified).
III.
An arguable basis supported the imposition of an equitable monetary judgment, and
the district court did not abuse its discretion in finding Ross’s circumstances
unextraordinary. Thus, the court properly denied Ross’s motion for vacatur under Rule
60(b)(4) and (b)(6). Ross remains liable for $163,167,539.95 in restitution—an amount
that would justly recompense the victims of her deplorable scheme.
AFFIRMED