Federal Trade Commission, et al. v. Kevin W. Guice

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14248
Non-Argument Calendar
____________________
FEDERAL TRADE COMMISSION,
OFFICE OF THE ATTORNEY GENERAL,
STATE OF FLORIDA,
DEPARTMENT OF LEGAL AFFAIRS,
Plaintiffs-Appellees,
versus
LIFE MANAGEMENT SERVICES OF ORANGE COUNTY, LLC,
a Florida limited liability company, et al.,
Defendants,
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2 Opinion of the Court 19-14248
KEVIN W. GUICE,
individually and as an officer of
Loyal Financial & Credit Services, LLC,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:16-cv-00982-CEM-GJK
____________________
Before L UCK , LAGOA , and B RASHER , Circuit Judges.
PER C URIAM :
Kevin Guice swindled thousands of people by falsely prom-
ising that he could reduce their interest rates on, and even elimi-
nate, their credit card debt. What he didn’t tell them was that ac-
cepting his offer would eviscerate their credit ratings and cost them
thousands of dollars. The Federal Trade Commission, along with
the Florida Attorney General, brought suit to put a stop to Guice’s
scheme and to recover what they could. The district court entered
summary judgment for the Federal Trade Commission and the At-
torney General, issued a permanent injunction, and ordered
twenty-three million dollars of disgorgement. Guice now appeals.
After careful review, we affirm.
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19-14248 Opinion of the Court 3
FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
In 2011, Kevin Guice incorporated a debt services company
called Loyal Financial & Credit Services. Loyal purported to offer
two main services. First, it offered customers the opportunity to
lower the interest rates on their existing credit card debt. To attract
customers, Loyal cold-called people—including those on the Fed-
eral Trade Commission’s “do not call” registry1—falsely claiming
that it worked with credit card companies like Visa and MasterCard
and that Loyal had “more power than the average consumer to re-
duce rates.” Loyal boasted to customers that using its program
would save them “thousands of dollars” and that they would pay
off their debt “three to five times faster.” And Loyal promised to
get its customers zero percent interest rates permanently.
But what the customers didn’t know was that Loyal’s pro-
cess required getting authorization to open a new credit card in the
customer’s name—a promotional card with a temporary zero per-
cent interest rate—and then transferring the existing debt to the
new card. When the new card’s promotional rate expired, Loyal
would just repeat the cycle. Loyal never mentioned, though, that
transferring the debt typically triggered a “transfer fee” of some
1 The registry is a national list of phone numbers whose owners have notified
the Commission that they do not want to receive unsolicited telemarketing
phone calls.
See Federal Trade Commission, National Do Not Call Registry
FAQs, https://www.consumer.ftc.gov/articles/national-do-not-call-registry-
faqs (last accessed Jan. 28, 2022).
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4 Opinion of the Court 19-14248
percentage of the balance transferred. And Loyal didn’t tell cus-
tomers that they would frequently have to open new cards and
close old ones, or that doing so would damage their credit rating.
For this “service,” Loyal charged customers between five hundred
and five thousand dollars.
In 2013, Loyal began offering the second service: debt elim-
ination. For the debt elimination service, Loyal told customers to
stop making payments to their credit cards and, once they had been
in default for three months, Loyal would negotiate a settlement
with their credit card companies. Loyal also told some customers
that the debt would be paid off by a “government fund,” and told
others that there was a fund paid into by credit card companies as
a lawsuit settlement. Either way, Loyal did not tell customers that
stopping payment would hurt their credit and put them at risk for
being sued by a debt collector. For this “service,” Loyal charged
between two thousand and twenty-six thousand dollars.
In February 2013, the Florida Department of Agriculture
and Consumer Services began investigating Loyal and filed an ad-
ministrative complaint alleging that it had employed unlicensed
salespeople and was using unapproved telemarketing scripts.
While the case ultimately settled, the Department refused to renew
Loyal’s telemarketing license. Later that same year, a former cus-
tomer sued Loyal and Guice for promising to pay off her credit card
balance and instead stealing her money while she was in a nursing
home.
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19-14248 Opinion of the Court 5
Facing this pressure, in February 2014, Guice directed an
employee, Wayne Norris, to set up a new company called Life
Management Services of Orange County, LLC. As Norris remem-
bered it, Guice intended Life Management Services only to be a
temporary measure until Guice’s court case was “cleared up.” Nor-
ris said that he registered the company in his wife’s friend’s name,
but in reality, Guice owned Life Management Services. When
asked at his deposition whether he set up Life Management Ser-
vices, Guice invoked his Fifth Amendment privilege against self-
incrimination.
Loyal and Life Management Services were essentially the
same company. They offered identical services and used identical
telemarketing scripts. They had the same employees—forty-two
employees moved seamlessly from Loyal to Life Management Ser-
vices. In fact, the employees testified that they didn’t even know
there had been a change until their new paychecks and renewed
telemarketing licenses listed Life Management Services, not Loyal,
as their employer.
Guice exercised substantial control over Life Management
Services.2 For instance, Guice directed its revenue flow and told
others to withdraw money from its account for him. Guice also set
hiring criteria and decided who should be interviewed. And Guice
supervised Life Management Services’s managers, meeting with
them weekly. When asked at his deposition if he had the ability to
2 Guice admits that he owned and controlled Loyal.
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6 Opinion of the Court 19-14248
control Life Management Services, Guice again invoked his Fifth
Amendment privilege.
Life Management Services (and Loyal) used “automatic dial-
ers” to send prerecorded messages to customers nationwide, re-
gardless of their status on the “do not call” registry. Ultimately, the
Commission received over eight thousand consumer complaints
about Loyal and Life Management Services. The Commission—
along with the Florida Attorney General—sued Guice, Loyal, Life
Management Services, a host of shell companies, and a few other
officers associated with the scheme.
The complaint alleged that Guice and his companies had en-
gaged in misleading and deceptive conduct, in violation of section
5 of the Federal Trade Commission Act and the Florida Deceptive
and Unfair Trade Practices Act, and, in doing so, had also broken
various Federal Trade Commission telemarketing regulations.
Specifically, the Commission3 complained that Guice and his com-
panies made five specific misrepresentations.4
3 For ease of reference, we refer to the Federal Trade Commission and the
Florida Attorney General together as the Commission.
4 In total, the complaint had eleven substantive counts. Counts one and two
charged violations of the Federal Trade Commission Act and count eleven
charged a violation of the Florida Deceptive and Unfair Trade Practices Act.
Counts three through ten alleged violations of different Commission regula-
tions. The complaint was organized so that the same conduct constituted
multiple violations—for example, it charged that making misrepresentations
about an affiliation with a financial institution violated the Federal Trade
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19-14248 Opinion of the Court 7
• First, that Guice and his companies were affiliated
with a bank, credit card issuer, or credit card associa-
tion.
• Second, that consumers who purchased the interest
rate reduction program would have their credit card
interest rates reduced substantially and permanently.
• Third, that consumers who purchased the interest
rate reduction program would save “thousands of
dollars in a short time.”
• Fourth, that consumers who purchased the interest
rate reduction program would be able to pay off their
debts “much faster, typically three to five times
faster.”
Commission Act (count one(a)), Commission regulations (count four), and
the Florida Deceptive and Unfair Trade Practices Act (count eleven(a)). Guice
doesn’t challenge on appeal whether the conduct alleged violated the law; he
only argues that he was not liable for his employees’ conduct. For this reason,
we analyze whether Guice was liable for each misrepresentation and don’t
consider the district court’s ruling that the misrepresentations constituted stat-
utory and regulatory violations. Guice doesn’t argue that they weren’t. And
they clearly were.
Additionally, Guice does not challenge his liability for count seven (receiving
a fee before performing services), count nine (initiating an unlawful prere-
corded message), or count ten (failing to pay “do not call” registry fees), so we
omit any discussion of those counts.
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8 Opinion of the Court 19-14248
• And fifth, that consumers who purchased the debt
elimination services would receive a service
“whereby [Guice] would use money obtained from a
government fund, paid for by credit[]card companies,
to pay off consumers’ credit[]card debts within
18 months.”
The complaint also alleged that Guice and his companies
withheld material information to their potential customers, includ-
ing that using their services could result “in a consumer having to
pay a variety of fees to credit[]card issuers, including, among oth-
ers, balance-transfer fees” and could negatively impact consumers’
credit. Finally, the complaint alleged that Guice and his companies
called people on the “do not call” registry.
All of the defendants except Guice settled and the Commis-
sion moved for summary judgment. In response, Guice argued
that he did not control Life Management Services, so he could not
be held responsible for its conduct. Guice also contended that his
companies did what they said they could do: they had lowered
customers’ credit card interest rates; his debt elimination services
were “legitimate and helpful”; and he did not participate in any mis-
representations, nor had he directed his employees to make any.
The district court concluded that there was no genuine dis-
pute that Guice controlled Loyal and Life Management Services
because he was their corporate officer and directed their activities,
revenue, and hiring. The district court also concluded that the
summary judgment evidence showed that Guice knew the
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19-14248 Opinion of the Court 9
employees were making material misrepresentations and omis-
sions and he failed to prevent them. Ultimately, the district court
entered summary judgment for the Commission on all counts, per-
manently enjoined Guice from operating a telemarketing com-
pany, and entered a judgment against Guice for twenty-three mil-
lion dollars. Guice now appeals the district court’s summary judg-
ment for the Commission.
STANDARD OF REVIEW
“We review de novo a district court’s grant of summary
judgment, applying the same legal standards as the district court.”
Alvarez v. Royal Atl. Dev., Inc., 610 F.3d 1253, 1263 (11th Cir. 2010)
(emphasis omitted). “We will affirm if, after construing the evi-
dence in the light most favorable to the non-moving party, we find
that no genuine issue of material fact exists and the moving party
is entitled to judgment as a matter of law.”
Id. at 1263–64. “[T]he
moving party has the burden of demonstrating that there are no
genuine issues of material fact, but once that burden is met the bur-
den shifts to the nonmoving party to bring the court’s attention to
evidence demonstrating a genuine issue for trial.”
Paylor v. Hart-
ford Fire Ins. Co., 748 F.3d 1117, 1121–22 (11th Cir. 2014). “Over-
coming that burden requires more than speculation or a mere scin-
tilla of evidence.”
Id. at 1122.
DISCUSSION
Guice argues that there were four genuine issues of material
fact that precluded summary judgment. First, he says that there
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10 Opinion of the Court 19-14248
was a genuine dispute about whether he controlled Life Manage-
ment Services. Second, he contends that there was a genuine issue
about whether he knew misrepresentations were being made by
Life Management Services’s employees Third, he argues that the
affidavits he submitted from employees attesting that they had
saved customers money created an issue of fact about whether his
programs did what he said they would do. And fourth, he main-
tains that rogue employees violated the “do not call” registry and
he didn’t know about the violations and was not responsible for
them.
Before continuing, a few words about Guice’s brief: This
was a complex case involving a web of shell companies, a large rec-
ord, and convoluted financial terms. The district court’s order
summarizing and analyzing the summary judgment record is fifty-
one pages long. On appeal, Guice’s brief is sparse: the argument
section is two pages long, does not cite any case law, and cites to
evidence submitted below just once. We would be justified in
deeming all of Guice’s arguments abandoned.
See Singh v. U.S.
Att’y Gen., 561 F.3d 1278, 1279 (11th Cir. 2009) (“[A]n appellant’s
simply stating that an issue exists, without further argument or dis-
cussion, constitutes abandonment of that issue and precludes our
considering the issue on appeal.”). Nevertheless, we try our best
to address his arguments on the merits with help from the thor-
ough and well-cited district court order.
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19-14248 Opinion of the Court 11
Control of Life Management Services
As a threshold matter, we first consider Guice’s argument
that there was a genuine dispute about whether he “controlled”
Life Management Services. After all, if Guice did not control Life
Management Services, then he cannot be liable for its employees’
conduct.
It is black letter law that “[i]ndividuals may be liable for FTC
Act violations committed by a corporate entity if the individual par-
ticipated directly in the deceptive practices or acts or had authority
to control them.”
F.T.C. v. IAB Mktg. Assocs., L.P., 746 F.3d 1228,
1233 (11th Cir. 2014) (cleaned up). Authority to control can be es-
tablished from “active involvement in business affairs and the mak-
ing of corporate policy.”
Id. (cleaned up). And in order to impose
individual liability, the Commission must establish that “the indi-
vidual had some knowledge of the deceptive practices.”
Id. (alter-
ation adopted).
The Commission met its burden to show that there was no
genuine dispute of fact that Guice controlled Life Management Ser-
vices and knew about its deceptive practices. Guice told his em-
ployee, Norris, to incorporate Life Management Services. Guice
also directed Life Management Services’s revenue into various
shell companies and to be withdrawn from its accounts. Guice in-
voked his Fifth Amendment right not to self-incriminate when
asked if he had the ability to control Life Management Services.
While, like in a criminal case, a civil litigant may choose to invoke
his right not to self-incriminate, unlike in a criminal case, in a civil
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12 Opinion of the Court 19-14248
case, the court may impose an adverse inference against him.
Bax-
ter v. Palmigiano, 425 U.S. 308, 318 (1976).5 The district court im-
plicitly did so, and we will here as well. When asked if he was in-
volved in writing Life Management Services’s misleading call
script—which was identical to Loyal’s—Guice again took the Fifth.
Lastly, Guice supervised and consulted with Life Management Ser-
vices’s managers weekly.
Guice’s summary judgment evidence doesn’t establish a
genuine dispute as to his control of Life Management Services. Be-
low, he relied on three facts: he “submitted” deposition testimony
by two Loyal and Life Management Services employees—Lee Ann
Brownell and Randi Stickles—who said that they “never saw”
Guice at Life Management Services and one of whom, Stickles, said
that she “did not consider Guice to be her boss”; Loyal and Life
Management Services had different mailing addresses; and he was
not named on any bank signature cards for any company except
Loyal.
None of this supports a different result. First, the snippets of
deposition testimony Guice cited don’t create a disputed fact
5 One exception to this rule is that a court cannot use an adverse inference “as
a substitute for the need for evidence on an ultimate issue of fact.”
Eagle Hosp.
Physicians, LLC. v. SRG Consulting, Inc., 561 F.3d 1298, 1304 (11th Cir. 2009).
But here, where Guice set up Loyal, directed the set-up of Life Management
Services, and where both companies offered identical programs and used iden-
tical scripts, there is sufficient other evidence that summary judgment was not
entered solely because of Guice’s invocation of his Fifth Amendment privilege.
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19-14248 Opinion of the Court 13
because they are not in the record. Fed. R. Civ. P. 56(c) (“A party
asserting that a fact . . . is genuinely disputed must support that as-
sertion by . . . citing to particular parts of materials
in the record.”
(emphasis added)). Second, even if those portions were in the rec-
ord, they wouldn’t create a triable issue of fact because they don’t
bear on the issue at hand: whether Guice had knowledge and con-
trol of what was happening at Life Management Services.
Guice says that neither Stickles nor Brownell ever saw him
at Life Management Services and that Stickles didn’t think that she
worked for him. But, Stickles admitted that she didn’t pay atten-
tion to who she worked for as long as she was paid, and testified
that she only remembered receiving checks from two people, one
of whom was Guice. Brownell, for her part, admitted that she
didn’t know who owned Life Management Services but identified
Guice as her employer—one that she would text with weekly.
And, while it may be true that Loyal and Life Management
Services had different mailing addresses and that Guice was not
listed as an owner of the Life Management Services’s bank account,
the summary judgment evidence showed that Guice controlled the
activities of Life Management Services’s operations and activities
and he was able to direct money out of Life Management Services’s
bank account and into his own. Taken together, these facts don’t
create a genuine dispute—evidence such that “a reasonable jury
could return a verdict for the nonmoving party”—about whether
Guice controlled Life Management Services.
See Anderson v. Lib-
erty Lobby, Inc., 477 U.S. 242, 248 (1986).
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14 Opinion of the Court 19-14248
Misrepresentations and Omissions
Second, Guice contends that there was a genuine dispute
about whether he was individually liable for the misrepresenta-
tions and omissions made by Loyal and Life Management Services
employees. Guice doesn’t identify which statements he is talking
about, but, because he cites to pages eighteen through twenty-one
of the district court’s summary judgment order, which discussed
misrepresentations about affiliations with financial institutions, we
assume he doesn’t think he is liable for those misrepresentations.
As we’ve said, Guice is liable for Life Management Services’s
deceptive practices if he had the authority to control them, as long
as he had knowledge.
See IAB Mtkg. Assocs., L.P., 746 F.3d at 1233
(“Individuals may be liable for FTC Act violations committed by a
corporate entity if the individual . . . had authority to control [cor-
porate entity] . . . as long as individual had some knowledge of the
[deceptive] practice”) (internal quotations omitted). Because
we’ve already agreed that there is no genuine dispute that Guice
controlled Life Management Services, all that’s left to determine is
whether the misrepresentations happened and whether Guice
knew about them.
Below, the district court considered: (1) a number of affida-
vits from customers stating that salespeople for Loyal and Life
Management Services told them that they were affiliated with fi-
nancial institutions; (2) Loyal’s and Life Management Services’s tel-
emarketing scripts which instructed employees to make those rep-
resentations; and (3) employees’ testimony that they did make
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19-14248 Opinion of the Court 15
those representations. The Commission also produced summary
judgment evidence that the representations weren’t true; in fact,
Loyal, Life Management Services, and Guice had no connection to
any bank or credit card company. Finally, the Commission sub-
mitted evidence that Guice knew about these misrepresenta-
tions—including that Guice wrote the scripts which included them,
and was forwarded emails from angry customers about the lies.
The district court concluded that these statements consti-
tuted violations of the Federal Trade Commission Act, the Florida
Deceptive and Unfair Trade Practices Act, and the Commission
regulation, and that Guice had knowledge of the violations. Guice
doesn’t challenge this conclusion on appeal; he only argues that
there is a genuine dispute as to whether he is liable. This is because,
he says, he didn’t directly participate in any misrepresentations
and, in fact, provided proof to the district court that it was a com-
pany practice to “inform employees ‘not to mispresent facts to con-
sumers’ and ‘that they were not to mislead the public.’”
There is no genuine dispute about Guice’s liability. Guice—
both in the district court and on appeal—fails to cite any record
evidence for the proposition that he did not participate in misrep-
resentations. And the law is clear that “a sentence in an unsworn
brief is not evidence.”
Travaglio v. Am. Exp. Co., 735 F.3d 1266,
1269 (11th Cir. 2013). Even if there was evidence, it wouldn’t mat-
ter, because Guice’s liability stems from his control of Loyal and
Life Management Services, not from his individual conduct.
See
F.T.C. v. Gem Merchandising Corp., 87 F.3d 466, 470 (11th Cir.
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16 Opinion of the Court 19-14248
1996) (“The fact that the actions for which [the individual defend-
ant] was responsible were performed by Gem Merchandising does
not lessen his individual liability.”). Because Guice controlled
Loyal and Life Management Services, and knew that both compa-
nies made the misrepresentations, he is liable.
Guice also relies on employee contracts and a snippet of a
manager’s testimony to argue that “efforts were made to ensure
compliance[.]” But, again, the testimony Guice relies on isn’t in
the record. And as to the contracts, they required employees to
“adhere[] [to the telemarketing script] verbatim” and provided that
“[a]ny deviation from the script [would be] considered a serious vi-
olation.” Those same scripts required employees to identify them-
selves as “work[ing] directly with the corporate office[s] of Visa,
MasterCard, American Express and Discover[.]” So, in fact, the
employee agreements
required employees to make misrepresenta-
tions. And those agreements didn’t, as Guice contends, prohibit
making misrepresentations about affiliations with financial institu-
tions. They only instructed employees not to misrepresent “[Life
Management Services’s] service or the price of any offered” and
didn’t say anything about whether Life Management Services
“worked directly with the corporate office” of banks and credit card
companies.
In short, the record makes clear there is no genuine issue of
material fact that the misrepresentations happened and that Guice
knew about them.
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19-14248 Opinion of the Court 17
Helpfulness to Consumers
Third, Guice argues that there is a genuine dispute about
whether his services were helpful to customers.
But, even if his services had some value to some customers,
it wouldn’t absolve him of liability.
See IAB Mktg. Assocs., 746 F.3d
at 1233 (“[L]iability for deceptive sales practices does not require
that the underlying product be worthless.”). And, even if it could,
the employee affidavits he relies on are not competent summary
judgment evidence because they are unsworn. Affidavits that are
not made under penalty of perjury do not constitute evidence un-
der rule 56.
Carr v. Tatangelo, 338 F.3d 1259, 1273 n.26 (11th Cir.
2003) (“Unsworn statements do not meet the requirements of Fed.
R. Civ. P. 56(e) and cannot be considered by a district court in rul-
ing on a summary judgment motion.” (internal quotation marks
and alteration omitted)). Thus, Guice can’t use them to create a
genuine issue of material fact.
Below, Guice pointed to ten “consumers’ files that were
picked at random from huge boxes of files” that, he says, show that
Loyal and Life Management Services customers benefitted from
the credit services. But even assuming he is right, Loyal and Life
Management Services still violated the law because they didn’t dis-
close all the legally-required information to allow customers to
make an informed decision.
See IAB Mktg. Assocs., 746 F.3d at
1233 (holding that merely making a material misrepresentation is
sufficient to support liability). For example, Guice doesn’t chal-
lenge the district court’s conclusion that his telemarketers failed to
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18 Opinion of the Court 19-14248
inform customers that stopping payment would hurt their credit
and put them at risk for being sued by a debt collector. 6 And we’ve
already agreed that the summary judgment evidence showed that
Loyal and Life Management Services lied when they told custom-
ers that they were affiliated with major financial institutions and
that there was a government fund that would pay off their credit
card debts. Any “benefit” that Guice’s customers may have re-
ceived does not negate Guice’s misrepresentations and omissions.
Do Not Call Registry Violations
Finally, the complaint charged Guice with making—or
“causing” a telemarketer to make—unsolicited calls to customers
on the “do not call” registry. The Commission’s rules prohibit “a
telemarketer to engage in,
or for a seller to cause a telemarketer to
engage in . . . initiating any outbound telephone call” to a person
on the “do not call” registry. 16 C.F.R. § 310.4(b)(1)(iii)(B) (empha-
sis added).
On appeal, Guice doesn’t dispute that Loyal and Life Man-
agement Services contacted customers on the registry. Instead, he
argues that because neither he “nor [his] employees ever initiated
phone calls to consumers” and because “it is undisputed that an
outside dialer or lead generator was used to make the outbound
calls,” he is not liable.
6 As they were legally required to.
See 16 C.F.R. § 310.3(a)(viii)(C).
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19-14248 Opinion of the Court 19
This argument fails for at least two reasons. First, he didn’t
make this claim to the district court, so we will not consider it for
the first time on appeal.
See Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1328 (11th Cir. 2004) (“This Court has repeatedly
held that an issue not raised in the district court and raised for the
first time in an appeal will not be considered[.]”).
Second, even if Guice was right that Loyal and Life Manage-
ment Services used auto-dialers, it doesn’t absolve him of legal lia-
bility. The relevant regulation applies to anyone who makes, or
who causes a third party to make, a call to a person on the registry.
16 C.F.R. § 310.4(b)(1)(iii)(B). The Commission submitted evi-
dence—in the form of transcripts from salespeople and supervi-
sors—that Guice’s employees used automatic dialers to contact
people on the “do not call” registry. When asked about his involve-
ment in using automatic dialers, Guice pleaded the Fifth. As we’ve
already explained, a defendant can be individually liable where he
participated in the complained-of acts or had the authority to con-
trol them.
See Gem Merchandising, 87 F.3d at 470. That Guice
used a computer program to dial numbers instead of his fingers is
immaterial to whether he caused the calls to be placed. Nor does
he cite any cases to the contrary—in fact the plain language of the
regulation applies to people who “cause” calls to be made—which,
in turn, means that the method (fingers or programs) is irrelevant.
16 C.F.R. § 310.4(b)(1)(iii)(B). Guice cannot escape liability this
way.
AFFIRMED.
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