United States District Court, M.D. Florida
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE.
Matter comes before the Court on the Plaintiff's Motion
for Summary Judgment (Doc. 144), the Defendants'
Responses in Opposition (Docs. 160, 165-1), and the
Plaintiff's Replies (Docs. 172, 174).
Federal Trade Commission (“FTC”) filed a
Complaint on December 12, 2016. Doc. 2. In the Complaint, the
FTC alleged violations of Section 5(a) of the FTC Act, 15
U.S.C. § 45(a), and the Telemarketing Sales Rule
(“TSR”), 16 C.F.R. 310 et seq. On August 2, 2017,
the FTC filed a Motion for Summary Judgment. Doc. 144.
seeks summary judgment on Counts I, II, III, and IV. Count I
alleges that the Defendants made misrepresentations in
violation of 15 U.S.C. § 45(a). Count II alleges that
the Defendants made misrepresentations to induce customers to
pay for goods or services in violation of the TSR. Counts III
and IV allege that the Defendants made calls to telephone
numbers on the National Do Not Call Registry in violation of
the TSR and that the Defendants failed to pay required
National No Call Registry fees in violation of the TSR.
undisputed facts are as follows. Defendant Jess Kinmont
(“Kinmont”) is the owner of J. William
Enterprises, LLC (“JWE”), which he organized in
2009. JWE obtained the fictitious name of “Pro
Timeshare Resales” in October of 2011. In 2012, JWE
began selling advertising services under the name of Pro
Timeshare Resales (“PTR”). Kinmont Dep. 1, Doc.
144-4, at 43:8-12. Defendant John Wenz (“Wenz”)
formed Pro Timeshare Resales of Flagler Beach, LLC
(“PTRFB”) “with the purpose of selling the
advertising services of JWE.” Wenz. Dep. 1, Doc.
144-13, at 23:10-24. JWE became affiliated with PTRFB in
March of 2012. Kinmont Dep. 1, Doc. 144-4, at 43:9-44:13.
Under the agreement between JWE and PTRFB, JWE would pay
PTRFB an agreed-upon percentage of successful sales, minus
cancellations, charge-backs, and expenses. Both JWE and PTRFB
operated under one Florida telemarketing license.
may grant summary judgment “[w]hen the only question a
court must decide is a question of law.” Saregama
India Ltd. v. Mosley, 635 F.3d 1284, 1290 (11th Cir.
2011). A party is entitled to summary judgment when the party
can show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56. Which facts are material depends on
the substantive law applicable to the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
moving party bears the burden of showing that no genuine
issue of material fact exists. Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). A court
“must draw all reasonable inferences in favor of the
non-moving party, and it may not make credibility
determinations or weigh the evidence.” Hinson v.
Clinch County, Ga. Bd. Of Educ., 231 F.3d 821,
826-27 (11th Cir. 2000) (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000)).
party moving for summary judgment points out an absence of
evidence on a dispositive issue for which the nonmoving party
bears the burden of proof at trial, the nonmoving party must
“go beyond the pleadings and by [his] own affidavits,
or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 324-25 (1986) (internal
quotations and citation omitted). Thereafter, summary
judgment is mandated against the nonmoving party who fails to
make a showing sufficient to establish a genuine issue of
fact for trial. Id. at 322, 324-25. The party
opposing a motion for summary judgment must rely on more than
conclusory statements or allegations unsupported by facts.
Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th
Cir. 1985) (“conclusory allegations without specific
supporting facts have no probative value”).
Counts I and II
order to show that the Defendants violated Section 5(a), the
FTC must show “‘(1) there was a representation;
(2) the representation was likely to mislead customers acting
reasonably under the circumstances, and (3) the
representation was material.'” Fed. Trade
Comm'n v. Lanier Law, LLC, 194 F.Supp.3d 1238, 1273
(M.D. Fla. 2016) (quoting F.T.C. v. Tashman, 318
F.3d 1273, 1277 (11th Cir. 2003)). If a representation would
likely be “relied upon by a reasonable prospective
purchaser, ” it is material. Id. at 1274.
(quoting F.T.C. v. Washington Data Res., 856
F.Supp.2d 1247, 1272 (M.D. Fla. 2012), aff'd sub nom.
F.T.C. v. Washington Data Res., Inc., 704 F.3d 1323
(11th Cir. 2013)). The Court presumes that express claims
made in order to induce the purchase of a service are
material. Id. Like Section 5 of the FTC Act, the TSR
prohibits sellers and telemarketers from “[m]aking a
false or misleading statement to induce any person to pay for
goods or services.” 16 C.F.R. § 310.3(a)(4).
“Identical principles of deception from Section 5 of
the FTC Act apply to the TSR, and a violation of the TSR
amounts to both a deceptive act or practice and a violation
of the FTC Act.” Washington Data Res., 856
F.Supp.2d at 1273. In order to hold individuals liable for
such violations, the FTC must demonstrate that the individual
defendants directly participated in, or had authority to
control, the practices. Lanier Law, LLC, 194
F.Supp.3d at 1285 (citing Wash. Data Res., 856
F.Supp.2d at 1276).
argues that the Defendants made misrepresentations to
consumers, and it has produced voluminous evidence that
supports this contention. Citing language used on the
Defendants' website and in brochures and other documents,
in addition to statements from numerous consumer
declarations, the FTC claims that the Defendants
misrepresented that they would sell or rent customers'
timeshares, rather than merely advertise the availability of
the timeshares for purchase or rental. However, the FTC's
evidence does not stand unrebutted. PTRFB and Wenz produced
evidence indicating that Wenz forbade employee telemarketers
from stating that they would “buy or sell or rent
timeshares on behalf of any customers.” E.g.,
Simmons Aff., Doc. 160-1, at 2; Mabrey Aff., Doc. 160-2, at
3. JWE and Kinmont point to similar evidence providing that
Kinmont prohibited employees from leading prospective clients
to believe that JWE could guarantee a sale or rental of
property within any time frame or that JWE had a buyer or
renter for the prospective client's property.
E.g., Jones Decl., Doc. 15, at 3; Holmes Decl., Doc.
17, at 3-4. Viewing the evidence in the light most favorable
to the non-movant, as the Court must, there remain material
disputes of fact as to whether the Defendants are liable for
misleading material representations in violation of the FTC
Act and the TSR.