Federal Trade Commission v. FleetCor Technologies, Inc.

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12539

____________________

FEDERAL TRADE COMMISSION,

Plaintiff-Appellee,

versus

CORPAY, INC.,

RONALD CLARKE,

Defendants-Appellants.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:19-cv-05727-AT

____________________

Before ROSENBAUM, LAGOA, and WILSON, Circuit Judges.

ROSENBAUM, Circuit Judge:

Great Britain has an expression: “All fur coat and no knick-

ers.” In the United States, we might say instead, “All hat and no

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2 Opinion of the Court 23-12539

cowboy.” Either way, we’d mean all talk and no substance, or some-

thing looks much better than it really is.

And that’s what the Federal Trade Commission (“FTC”)

thought about Corpay, Inc.’s promises to its customers.1 For years,

Corpay marketed itself as offering large and small businesses fuel

credit cards that promised savings, control, and transparency. Yet

when the FTC looked under the hat, it found no cowboy. Beneath

Corpay’s promises of big savings, the FTC alleged, stood hidden

charges, misleading practices, and broken commitments.

So the FTC filed an enforcement action against Corpay and

its CEO Ronald Clarke. After granting summary judgment for the

FTC against both Corpay and Clarke, the court also entered per-

manent injunctive relief against Corpay. Among other things, that

injunction prohibits Corpay from putting fee disclosures behind a

hyperlink, requires the company to make the disclosures “unavoid-

able,” and mandates that Corpay secure a separate assent for each

fee it charges.

Corpay now appeals the district court’s entry of summary

judgment and the permanent injunction against it and Clarke. It

argues that genuine disputes of material fact preclude summary

judgment. And even if liability stands, Corpay asserts, the district

1 FleetCor Technologies, Inc., rebranded and changed its name to Corpay,

Inc., in March 2024. The district-court decision and all filings in this case refer

to Corpay as “FleetCor.” But because of the name change, we refer to it as

“Corpay.”

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court exceeded its equitable authority by issuing an overly broad

injunction.

After reviewing the record and the parties’ briefs, and with

the benefit of oral argument, we mostly disagree. The evidence

against Corpay is overwhelming, and the company has not created

a genuine dispute of material fact to preclude summary judgment

against it. The evidence is similarly damning against Clarke on four

of the five counts. But on one count, we agree with Clarke that

the FTC has failed to establish that he had “some knowledge” of

the company’s illegal conduct to support summary judgment. As

for the injunction, we conclude that the district court didn’t abuse

its discretion in issuing that relief.

So we affirm the grant of summary judgment against

Corpay on all five counts of the FTC’s complaint. And we affirm

the grant of a permanent injunction against Corpay. We also af-

firm the grant of summary judgment on four counts against

Clarke. But we vacate the grant of summary judgment against

Clarke on Count II and remand for further proceedings on that

claim. Finally, we affirm the remainder of the district court’s judg-

ment, including the permanent injunction.

I. BACKGROUND

A. Factual Background

Corpay is a publicly traded company headquartered in At-

lanta, Georgia. Ronald Clarke has served as Corpay’s CEO since at

least 2014.

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Corpay’s core products are “fuel cards,” limited-use credit

cards for fuel purchases, designed for businesses that use vehicles.

Corpay advertises that these cards “provide a range of benefits, in-

cluding spending reports, a replacement for cumbersome reim-

bursement systems, methods for tracking fuel economy, and access

to credit.”

According to Corpay, it has over 200,000 business customers

and 8,000 employees. Some of Corpay’s largest customers are

highly sophisticated companies, including FedEx, UPS, Coca-Cola,

Pepsi, Lowe’s, and Sysco. But Corpay’s primary customer base,

that is, 90–95% of its customers, includes small- and medium-sized

businesses. So it’s unsurprising that around 75% of Corpay’s cus-

tomers have 10 or fewer Corpay cards and 83% have credit limits

of $20,000 or less. In fact, Corpay’s new-hire materials recognize

that customers are often small business owners . . . who “work in

the field/drive[] vehicles” and “do[n’t] think of them[selves] as hav-

ing a ‘fleet’”; are “not always in front of a computer”; and are

“short on time due to wearing multiple ‘hats.’”

Corpay offers many types of fuel cards, but three kinds are

relevant for this case: (1) Fuelman cards, (2) Mastercard cards, and

(3) co-branded cards. Independent merchants that directly contract

to be in Corpay’s “Fuelman Network” receive Fuelman cards. Cus-

tomers may use Corpay’s Mastercard cards at fuel and maintenance

locations that accept Mastercard. And customers may use the co-

branded cards, which Corpay operates in partnership with major

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fuel providers like BP, Speedway, and Arco, on either the Fuelman

or the Mastercard network.

On December 20, 2019, the FTC brought an action in the

Northern District of Georgia against Corpay and its CEO Clarke.

The FTC alleged they committed five violations of Section 5 of the

FTC Act, 15 U.S.C. § 45. Counts I through III asserted three kinds

of deceptive advertising. First, the FTC alleged Corpay created ads

that falsely promised discounts “per gallon” of fuel when the cus-

tomer used some of Corpay’s Fuelman Network and Mastercard

cards. Second, the FTC asserted that a set of Corpay’s ads for its

Mastercards falsely claimed that customers could limit purchases

on those cards for “fuel only.” And third, the FTC complained that

Corpay’s advertisements for both its Fuelman Network and Mas-

tercard cards falsely represented that they had no transaction fees.

Count V of the FTC’s complaint alleged Corpay engaged in

“unfair practices” by charging unauthorized, unexpected add-on

and late fees to its customers. For its part, Count IV asserted that

Corpay made false and deceptive representations by indicating on

billing statements that customers owed these allegedly unlawful

fees. So Counts IV and V jointly centered on one set of conduct.

The parties both moved for summary judgment in 2021. We

discuss the evidence against Corpay and Clarke specifically at the

time the district court ruled on the motions.

1. Count I: “Per Gallon” Advertisements

The first set of advertisements that the FTC challenged

claimed that four of Corpay’s cards offer savings for each gallon of

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fuel purchased with them. The content of these ads is not in dis-

pute, but the wording varies slightly between ads.

First up, we have the Fuelman Discount Advantage card.

Ads for that card generally promised that customers would “[e]arn

5¢ cash back per gallon” or “[e]arn 5¢ cash back with the Discount

Advantage FleetCard!” Here’s a representative advertisement for

this card:

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Second, Corpay offered the Fuelman Diesel Platinum card.

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Ads for that one generally promised that consumers would “[s]ave

10¢ per gallon on diesel fuel.” This next image displays a typical ad

for this card.

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Third, the company offered the Fuelman Commercial Plati-

num card. Those ads generally represented that the card “offer[ed]

a 5¢ per gallon discount on both unleaded and diesel fuel.” And

they highlighted that consumers “[s]ave[d] 5¢ per gallon on un-

leaded and diesel fuel everyday, from gallon one, with no caps on

total savings.” Plus, the Fuelman Commercial Platinum card pro-

moted an additional 3¢-, 4¢-, or 15¢-per-gallon savings for the first

three months. Here’s an image of a typical ad for this card:

Finally, Corpay promoted the Universal Premium Master-

card. Those ads promised that the customer would “[s]ave up to

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6¢ per gallon wherever Mastercard is accepted.” A representative

ad for that card appears below.

As the images above show, for almost all the ads, the com-

pany displayed the savings promotion in prominent, central text.

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But often they followed the text with an asterisk. This asterisk

marked a fine, tiny-print disclosure at the bottom of the ad contain-

ing several caveats to the discount. And these caveats often oper-

ated in practice to negate or significantly decrease any promised

benefits.

To show what we mean, consider one of Corpay’s ads pro-

moting 5¢-per-gallon savings. The ad promised that the card was

“conveniently accepted at 40,000 fuel sites in the Fuelman Net-

work: . . . [and] across 6 major national brands, including Chevron,

Texaco, Loves, Pilot, Sinclair, and ARCO.” But in fine print at the

bottom of the same ad, the disclaimer contradicted much of the

promised savings by capping them and by narrowing the network

both substantially and indefinitely:

Rebates credited to account statement

quarterly, and limited to 2,000 gallons

per quarter. Rebates are subject to for-

feiture for inactivity or late payment be-

havior during the quarter. Discount

does not apply to gallons pumped at the

Convenience Network of Chevron, Tex-

aco, Loves, Pilot, Sinclair, and ARCO.

Convenience Network is subject to

change without notice.

So the very brands the ad highlighted as available for use

were the same ones where no discount applied. This kind of fine-

print reversal was typical of Corpay’s rebate promotions.

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Another ad offered up to 6¢-per-gallon discounts anywhere

that accepted Mastercard. But what the ad promised to give, the

disclaimer took away much of:

*Earn up to 6¢ per gallon in rebates

from a combination of 3¢ per gallon

within the Fuelman Discount Network

and up to 3¢ per gallon in volume re-

bates. Purchases must be made with the

Universal Premium FleetCard Master-

Card and the account must be in good

standing. Not valid on aviation, bulk

fuel, propane or natural gas purchases.

Volume rebates are based on the num-

ber of gallons purchased monthly and

will be calculated on the gallons

pumped at Level 3 sites . . . . The Fuel-

man Discount Network is a selected

group of fuel locations that allow card-

holders additional savings. For a list of

participating sites, visit

www.fuelmandiscountnetwork.com.

So under the disclaimer, the discount applied at only those

merchants who entered the Fuelman Discount Network rather

than all who accepted Mastercard. And the fine text also warned

that Corpay would limit the rebates to accounts in good standing.

But it never defined the term. And as we explain later, that turned

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out to be a bit of a black hole. This limitation was typical of the

disclaimers. The disclaimer similarly failed to explain what “Level

3 sites” were, even while it said that Corpay would calculate half

the rebate based on purchases at such locations.

And though the FTC presented an expert witness who

agreed that companies can modify rebates if they fully disclose

changes, notably missing from these and most (but not all) dis-

claimers was any indication that Corpay reserved the right to

change the discount program at any point.

Still, some ads directed consumers to consult terms and con-

ditions to learn more. And these terms and conditions allowed the

company to change or decrease its rebates. Corpay’s expert also

opined that the substance of the company’s limitations on its re-

bates was consistent with common industry practices.

In the end, because of all these constrictions, customers

ended up with discounts that were substantially lower than the top-

line value Corpay appeared to promise. According to the FTC’s

data analyst, the following chart represents the advertised discount

versus the average actual discount customers received:

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Product Advertised Discount Per Average Actual Discount

Gallon Per Gallon

Fuelman Diesel Plati- 10¢ 6¢

num – 2016

Fuelman Diesel Plati- 8¢ 6¢

num – 2017-2019

Fuelman Commercial 5¢ 3¢

Platinum

Fuelman Discount Ad- 5¢ 0.1¢

vantage

Universal Premium Mas- 6¢ 1¢

tercard

Plus, it’s undisputed that Corpay “turned off per gallon dis-

counts (1) after customers had been using [Corpay] services for

some period of time, e.g., 6 months or 12 months, or (2) if custom-

ers did not purchase a certain number of gallons.” So customers

lost even the significantly reduced benefits.

In fact, in a 2017 email to CEO Clarke, Corpay’s Head of

Sales admitted as much. He said that “[f ]undamentally [Corpay

has] had minimal/no [small-to-medium sized business] rebates

since the beginning of 2015.” And internal customer surveys noted

that some consumers had complained about not receiving suffi-

cient discounts. Still, in a survey that Corpay’s expert witness con-

ducted, fewer than 2% of customers in 2020 complained of dis-

counts.

2. Count II: “Fuel Only” Ads

The second set of ads at issue claimed that customers could

limit purchases on Corpay Mastercards to “Fuel Only.” And it’s un-

disputed that in its promotional materials, Corpay advertised these

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cards as “Fuel Only.” These cards contrasted with those that

Corpay labeled maintenance only; fuel and maintenance only; and

materials, fuel, and maintenance.

But Corpay knew its “Fuel Only” representation was false.

A slide in Corpay’s new-hire materials referred to “Fuel Only” as a

“misnomer.” It noted that Corpay could limit its Mastercard to

only purchases at fuel sites but not to specific products. And while

“Fuel Only” cards were limited to one purchase per fuel site by de-

fault, that purchase could be for things other than fuel, like “snacks,

beer, etc.” “[F]or even more security,” the slide continued, “Fuel

Only” cards could be “further limit[ed] . . . to purchasing at fuel

islands.”

Despite this evidence, a Corpay representative testified that

“Fuel Only” cards were limited to “at the pump” purchases. Yet

Corpay’s expert conceded that Corpay couldn’t limit all non-fuel

purchases on “Fuel Only” cards. Still, the expert noted, Corpay was

able to stop more than 2 million transactions through fraud alerts

for nonfuel purchases.

Even so, at least some customers complained that employ-

ees used their Fuel Only cards for nonfuel purchases. In one of the

more dramatic examples, a customer complained of $208,688.05 in

purchases of Safeway gift cards on its “Fuel Only” card. And

Corpay’s own expert concluded that 3% of all transactions and 10%

of in-store transactions on “Fuel Only” cards were on purchases

other than fuel.

3. Count III: “No Transaction Fees” Ads

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The third set of challenged advertisements boasted that

Corpay cards had “no transaction fees.” But in fact, Corpay

charged three fees under certain conditions per transaction or per

gallon of fuel. These fees included the Convenience Network Sur-

charge, the Minimum Program Administration Fee, and Level

2/High Risk Pricing.

First, the Convenience Network Surcharge, as Corpay’s

Terms and Conditions described it, was a fee of up to the greater

of 10¢ per gallon or $2.50 per transaction “for the use of select

sites/merchants.” Corpay’s Terms and Conditions didn’t identify

or define these “sites,” though. Internal company documents from

August 2019 referred to this fee as the “Convenience Trx Fee” and

the “CDN Tran Fee.” And in a deposition, Corpay’s Senior Vice

President for Revenue Management referred to the Surcharge as a

“transaction fee.” In a declaration, though, that same Senior Vice

President said the Surcharge was not a transaction fee but an “out-

of-network” fee like ATMs or healthcare companies charge.

Second, the Minimum Program Administration Fee re-

ferred, under Corpay’s Terms and Conditions, to a 10¢-per-gallon

or $2.00-per-transaction fee that Corpay could charge when the

previous month’s average fuel price fell below $3.25 per gallon. Au-

gust 2019 internal documents said Corpay was charging existing

but not new customers at 10¢ per gallon. And the Senior Vice Pres-

ident for Revenue Management confirmed that until 2018, Corpay

applied this fee to accounts on a per-gallon basis.

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Finally, Corpay had what it euphemistically referred to as

“Level 2 Pricing.” In its internal documents, Corpay more candidly

described “Level 2 Pricing” as “High Risk Fees.” Under Corpay’s

Terms and Conditions, Level 2 Pricing was an incremental charge

it applied to transactions for those it deemed “High Risk” custom-

ers, with a maximum of 20¢ per gallon. The August 2019 internal

documents assessed the fee for Fuelman Network cards at 20¢ to

30¢ per gallon, depending on the customer’s risk profile and for

Mastercard cards at $3 for medium risk and $4 for high risk “per

trx.”

Under the Terms and Conditions, “High Risk” meant all cus-

tomers who (1) had a credit score below a certain level (520 or lower

for commercial scores, or 660 or lower for individual score); (2) had

a credit score that dropped 51 points or more in a 3-month period;

(3) were assessed more than one late fee in a 12-month period; (4)

made a payment that the customer’s bank did not honor; or (5) “op-

erate[d] in the trucking or transportation industry.” Of course, given

the fuel cards’ purpose, many of Corpay’s customers “operate[d]

in the trucking or transportation industry.” So imposition of these

fees was not rare.

In a deposition, Corpay’s Senior Vice President for Revenue

Management referred to the Level 2 Pricing as a “transaction fee.”

Later, though, in her declaration, she swore that it was not a fee but

“risk-based pricing.” Meanwhile, in internal emails, Corpay in-

structed its customer service representatives to avoid the term

“High Risk” and instead use “Transaction Fee.”

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In response to this evidence, Corpay stresses that some of its

witnesses understood the term “transaction fee” to be a fee as-

sessed once for “every” transaction. And because Corpay doesn’t

uniformly apply these three fees to every transaction, Corpay rea-

sons, it does not consider them to be “transaction fees.”

4. Counts IV and V: Unauthorized Fees

In addition to the advertisements, the FTC challenged

Corpay’s billing customers for seven “unexpected fees.” We’ve al-

ready discussed three of these (the Convenience Network Sur-

charge, Minimum Program Administration Fee, and High Risk

Fees). As for the four other fees, they included FleetAdvance and

FleetDash, Fraud Protector, Accelerator Rewards, and the Clean

Advantage Program.

Corpay’s internal documents defined FleetAdvance & Fleet-

Dash as a $29.97 monthly charge. Corpay assessed Fraud Protector

as a charge of $3 per month per card (with a maximum charge of

$300 per month) for accounts that had at least 10 cards and $15 per

month per account for customers with 9 or fewer cards. For Accel-

erator Rewards, Corpay charged customers $4 per month per card.

Corpay enrolled customers by default in all three of these fees un-

less they opted out after a 60-day free trial.

An internal email confirms Corpay similarly automatically

enrolled customers in the Clean Advantage Program. That was a

5¢-per-gallon charge to “offset” emissions from fuel purchased.

Corpay billed this charge to existing customers who had been with

the company since at least 2018. But the company did send out a

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notice mailer to customers at the beginning of free trials for Clean

Advantage, Fraud Protector, and Accelerator Rewards.

Still, the FTC uncovered evidence that Corpay didn’t make

customers aware of these fees in advance. Internal emails and cus-

tomer complaints showed that Corpay did not mention these fees

to customers during the sales process. And a telephonic survey that

the FTC’s expert conducted of Corpay’s customers who were as-

sessed the eight fees revealed that the company informed just

7.02% of customers of all fees before charging them. That survey

produced the following data: 2

Fee Name Percent of Corpay Customers That

Were Charged Where an Agreement

Signer or Update Receiver Was In-

formed About the Fee in Advance

Minimum Program Administration Fee 19.15 %

Level 2 Pricing or High Credit Risk Fee 11.39 %

Convenience Network Surcharge 30.43%

Fleet Dash 16.13%

Clean Advantage 6.25%

Accelerator Rewards 21.74%

2 Corpay’s experts disputed the methodology of this survey. They complain

participants were asked to remember information they likely could have for-

gotten, were not given an explicit option to say they did not remember the

answer, were asked “biased” questions, were informed the survey was being

conducted for the FTC, and were paid $100 for participation.

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Fraud Protector 14.00%

Three of the fees (Fraud Protector, Accelerator Rewards,

and Clean Advantage) did not appear in past Corpay Terms and

Conditions. The rest were in the Terms and Conditions. Even so,

Corpay made the document largely inaccessible to customers.

From 2014 to 2017, Corpay did not post the Terms and Conditions

online. Instead, it mailed a hard copy to customers after they

signed up for a card. And internal emails directed employees not

to provide an electronic copy to customers.

The company also made the Terms and Conditions difficult

to read. It printed the document, which contains many provisions,

in tiny, fine-print text. Indeed, the version Corpay provided to cus-

tomers was so unreadable that employees had their own “read

friendly” alternative.

Besides these deficiencies, the FTC uncovered evidence that

Corpay did not identify fees it charged on its billing statements. In-

voices stated only a total sum of charges the customer owed to the

company.

In the best-case scenario, to find itemized fees, customers

had to look at a separate document: “the Fuel Management Re-

port.” This practice so tended to effectively hide the charges that,

on one occasion in March 2016, Corpay employees sent panicked

emails when a fee was included on an invoice instead of the Fuel

Management Report.

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Even worse, according to another employee email, before

September 2017, the company didn’t even disclose some charges

like the High Risk Fee on the Report. Customers could discover

the upcharge only by comparing their fuel receipts to their Corpay

invoice.

Internal surveys also reported that Corpay noted fees on the

Report without specific labels, instead using identifiers like “Misc.”

The FTC’s telephonic survey found that only 25.23% of Corpay’s

customers saw fees charged on either their invoice or Fuel Manage-

ment Reports. And to top it off, Corpay knew that its customers

were confused and surprised by its fee practices. Eight internal sur-

veys from 2016–2020 told them so. In the most recent survey, dated

February 2020, the company found that 38% of customers cited

fees as the top reason for leaving, with 55% of them pointing to the

FleetAdvance fee.

In response to this evidence, Corpay offered its own testi-

mony.

First, one of its experts determined that the amount of fuel

customers purchased did not change when Corpay disclosed a fee

on the Fuel Management Report (but of course, that was not in the

invoice).

Second, several of the company’s executives asserted in tes-

timony that Corpay had a practice of disclosing fees to customers

before charging them.

Third, Corpay introduced evidence that it made changes af-

ter the FTC advised Corpay of its concerns. “Following the FTC’s

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allegations in this case, [Corpay said, it] sent revised and enhanced

Terms and Conditions to its existing customers.” These changes

included “[r]edesign[ing] its Terms & Conditions with a prominent

fee box up front and simplified language,” “[s]en[ding] the rede-

signed Terms & Conditions to its customer base,” and seeking “ap-

proval from its customer base for these redesigned Terms & Con-

ditions.”

For instance, in October 2019, two months before the FTC

filed its complaint, Corpay rolled out the new Terms and Condi-

tions with a prominent fee box for new customers. These new

Terms and Conditions included previously undisclosed fees like

Clean Advantage Program, Fraud Protector, and Accelerator Re-

wards, and it described them as “Program Fees.”

Then, at some point unclear from the record, Corpay ob-

tained renewed consent from existing customers. Corpay sent its

customers an online pop up, which notified the user of new Terms

and Conditions. That popup presented a hyperlink to see the

Terms and Conditions and asked them to click “I agree.” The

popup also told the user that the Terms and Conditions had infor-

mation on the “fees” on the account. According to an analysis by

Corpay’s expert, by October 2020 (ten months after the FTC’s com-

plaint), 81% of customers had accepted the new terms and condi-

tions.3 Still, 18.8% (19,146 out of 101,472 active accounts) had not

responded to the popup. And Corpay did not discontinue service

3 By June 30, 2020, this figure was only about 69%.

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to nonresponsive accounts. Only 133 accounts declined the popup,

and 70 accounts asked for revised Terms and Conditions.

Corpay referred to this effort as the “Express Informed Con-

sent Project.” In one internal slide, Corpay explained its reasons

for the Express Informed Consent Project: “The FTC alleges that

[Corpay’s] terms and conditions are insufficient, and in particular

fail to fully disclose certain fees. We disagree with the FTC’s alle-

gations, but took the opportunity to improve our terms and condi-

tions.”

5. Counts IV and V: Erroneous Late Fees

The FTC also alleged Corpay charged its customers late fees

for timely payments. Based on Corpay’s transaction data, the FTC

put the amount Corpay collected from unfair late-fee practices at

$213 million in unlawful fees. The FTC corroborated its allegations

with Corpay’s internal communications, internal studies, em-

ployee testimony, and even Corpay’s own commissioned study.

We start with the internal communications. Several show

Corpay improperly assessed late fees.

For example, a November 2017 email from the Senior Vice

President of Product and Growth described erroneous late fees as

a “massive problem.” And a chat between two supervisors in cus-

tomer service included the comment that customers “can’t set up

online bill pay, Checkfree doesn’t work half the time[.] And

heave[n] forbid you mail a check. . . .”

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Plus, some evidence suggested these failures were inten-

tional. In a 2017 email, for instance, CEO Clarke asked employees

for “opportunities to get more late fee revenue in 2018 . . . thru a

higher rate, less/no grace days, etc, etc.” Along these same lines,

a former Corpay Revenue Analyst testified that the Vice President

of Revenue Management told her that Corpay didn’t make it easy

for customers to pay electronically because doing so would reduce

late-fee revenue.

Even after Corpay implemented online payment systems,

internal communications revealed that it still had delays in payment

postings. In particular, “payments made on weekdays post[ed] on

the next business day, and payments made on weekdays after 5:00

p.m., on weekends, or on holidays post[ing] two business days after

payment[.]”

Several internal studies from 2017 and 2018 also found that

customers complained of erroneous late fees. For example, one

2018 internal customer survey found that customers felt “[l]ate fees

[are] charged even when a [Corpay] technical error prevents cus-

tomer on time payment.” And a January 2017 “Customer Risk As-

sessment” acknowledged “erroneous late fees.” It also identified

the reasons as “(1) ‘Check Free payment posting error in Aug. re-

sulted in payments not getting applied to accounts;’ (2) ‘EFT [Elec-

tronic Funds Transfer] processing . . . delayed causing accounts to

lock [recurring];’ (3) ‘Check By Phone constant processing delay

preventing timely application of payments;’ and (4) ‘Lockbox pro-

cessing delay or perception.’” Several customers also complained

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23-12539 Opinion of the Court 25

of improperly assessed late fees, including through online payment

systems.

In an affidavit, Corpay’s treasurer acknowledged that

Corpay previously could not post online payments within 24

hours. But the company instructed customers to pay by phone for

quicker payments. And he insisted the Terms and Conditions and

the online-payment portal contained information on these cutoffs.

The treasurer also explained the company’s process for pay-

ments customers made by mail. He testified that Corpay credited

“conforming” payments it received by 4:00 p.m. that day. And he

said that payments “almost never arrive” after 4:00 p.m. Payments

are “nonconforming” if they’re not in the proper envelope or the

envelope contains more than a payment slip and check. Corpay

says requiring conforming payments allows for automatic pro-

cessing of payments, and Corpay advises customers that non-con-

forming payments result in delays. The Senior Vice President of

Product and Growth also testified that postal slowdowns caused

any delays in posting payments by mail.

Still, the FTC’s telephonic survey found that Corpay charged

37.90% of its customers late fees even though they paid their bills

on time. Corpay takes issue with that statistic. Its expert found

that only 7.44% of customer complaints were about the issues the

FTC identified in its complaint, including late fees. That expert also

found that only between 9 and 14% of invoices were paid late be-

tween April 2016 and May 2019. And of those that were late, less

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26 Opinion of the Court 23-12539

than 2% were late by only one day and 57.1% were late by five or

more days.

More recently, in October 2018, Corpay announced the

launch of a new online-payment portal. Corpay’s treasurer ex-

plained the company contracted with another online-portal pro-

vider, which could do same-day online payments. He claimed that

now, Corpay credits online payments made by 5:00 p.m. 4

Corpay also complains that the FTC’s telephonic survey in-

cluded customers who claimed disputed late-fee charges from be-

fore 2019, the first full year with the online portal. But even one of

Corpay’s experts analyzed a random sample of 400 payments made

through the new online portal and uncovered 33 late full payments,

including eleven—a full third of the payments designated “late”—

that were paid timely. Of those 33, five were submitted after 4 p.m.

the day they were due, six were submitted after 4 p.m. the Friday

before the Sunday they were due, and 22 were submitted after their

due date. That same expert found that Corpay credited “conform-

ing” mailed checks to customers’ accounts the day they were de-

posited. As for “nonconforming” checks, which made up just 0.8%

of the sample, Corpay credited them the next day.

4 In Corpay’s reply brief, the company acknowledges its cutoff as 4:00 p.m.

ET, not 5:00 p.m. Corpay’s expert also cited 4:00 p.m. ET as the cutoff.

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23-12539 Opinion of the Court 27

6. Ronald Clarke’s Conduct

Besides charging Corpay, the FTC alleged that Corpay’s

CEO Ronald Clarke was personally liable for the company’s con-

duct.

Throughout the alleged conduct and to the present, Clarke

has served as Corpay’s CEO, President, and Chairman of the

Board. As the district court explained, he “makes and supervises

company policy and is the ‘ultimate decision-maker,’ ‘along with

the board’ . . . .” Clarke is also “ultimately responsible” for

Corpay’s “day-to-day decisions” and “pays ‘close attention’ to

[Corpay’s] fuel card business.” All Corpay’s employees report to

him.

The FTC presented evidence that Clarke had direct

knowledge of Corpay’s charged conduct. As the district court sum-

marized, this evidence included the following: “(1) a volume of

email communications between Clarke and his subordinates; (2)

warnings from shareholders and partners; (3) customer complaints

to [Corpay] and the Better Business Bureau; (4) public reports; (5)

internal studies with respect to marketing, fees, and customer attri-

tion; and (6) Clarke’s general degree of involvement discussing the

practices at issue.”

Several emails showed Clarke had knowledge of the com-

pany’s marketing and fee-disclosure processes. In one exchange, a

subordinate told Clarke that customers often paid more than the

pump price of fuel despite per-gallon savings promised. In another

noteworthy exchange, Clarke asked his Head of Sales whether

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28 Opinion of the Court 23-12539

“there was ‘a mechanism’ . . . that ‘forfeits customer discounts.’”

The Head of Sales replied, “We added that language in early 2015

and used it as a basis to remove SMB [MasterCard] volume rebates.

Fundamentally we have had minimal/no SMB rebates since the be-

ginning of 2015.”

Another time, Clarke asked what notification a customer re-

ceives when Corpay bills them for a fee for the first time. His Head

of Sales responded, “None. Other than a T&C change.” He con-

tinued, explaining that when the terms and conditions allowed

charging a higher rate, Corpay offered no other notice for an in-

creased fee rate.

And as for late fees, in December 2017, Clarke asked if there

were “opportunities to get more late fee revenue in 2018 . . . thru a

higher rate, less/no grace days, etc, etc.”

Clarke also received information on customer complaints

about discounts and fee practices through subordinates, sharehold-

ers, and corporate partners.

Besides the information he obtained from these individuals,

Clarke was in the direct decision-making process for some of the

fees. For example, “Clarke approved the decision to implement the

Minimum Program Administration Fee and the subsequent deci-

sion to increase the amount of that fee.” Still, he testified he didn’t

know the specifics of how the fee would be implemented.

Clarke also received and acknowledged public reports criti-

cizing Corpay’s business practices. In March 2017, he got an email

telling him “[a]nother report just published,” with the report

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23-12539 Opinion of the Court 29

attached. Clarke answered, “Here we go again! This article seems

particularly stupid to me.” That report contained information on

multiple Better Business Bureau complaints about fees. In re-

sponse, Clarke instructed subordinates to fix it “just like we did last

time.” And in an investors’ call in May 2017, Clarke described pub-

lic reports on the company’s fees, billing practices, and customer

service as “fake news and exaggerations.”

But Clarke testified that after the articles, he formed groups

to ensure Corpay’s compliance with applicable laws and improve

customer experience. And the Senior Vice President of Product

and Growth testified that Clarke “approve[d] [the] customer expe-

rience initiative work.”

B. Procedural Background

On December 20, 2019, the FTC filed its complaint against

Corpay under 15 U.S.C. § 53(b). It alleged that Corpay and Clarke

violated 15 U.S.C. § 45(a) in several ways. In particular, the FTC

alleged three counts of deceptive advertising (based on Corpay’s

“per gallon,” “fuel only,” and “no transaction fees” ads). It also

pressed one count of unfair fee and billing practices for charging,

without express, informed consent, the seven fees we’ve discussed,

as well as late fees. And it charged one count of deceptive billing

practices for representing to customers that they owed these fees.

The FTC sought both injunctive and equitable monetary relief.

1. The Summary-judgment Order

In 2021, the FTC moved for summary judgment on all five

counts. Corpay also moved for summary judgment, asserting that

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30 Opinion of the Court 23-12539

the FTC cannot obtain monetary relief or permanent injunctive re-

lief. Because the Supreme Court in AMG Capital Management, LLC

v. FTC, 593 U.S. 67, 82 (2021), held that 15 U.S.C. § 53(b) does not

authorize equitable monetary relief, the district court granted

Corpay’s motion as to monetary relief.

The court also granted summary judgment to the FTC on

all five counts against both Corpay and Clarke. Construing all gen-

uine disputes of material fact in favor of Corpay, the court con-

cluded for the first three counts as to all challenged ads that “(1)

there was a representation; (2) the representation was likely to mis-

lead customers acting reasonably under the circumstances; and (3)

the representation was material.”

And the court recognized that the remaining two counts

about fee practices “r[o]se[] [or] f[e]ll[]” together. As to the unfair-

fees count, the court granted summary judgment because it con-

cluded Corpay’s fee practices “(1) . . . cause or are likely to cause

substantial injury to consumers; (2) the injury is not reasonably

avoidable by consumers; and (3) the injury is not outweighed by

any countervailing benefits to consumers or competition.” Then

the court applied the same test to Corpay’s billing statements that

it used to evaluate the challenged ads in Counts I through III. After

doing so, the court granted summary judgment on the final count.

As for Clarke’s personal liability, the court held that Clarke

had not shown a genuine dispute that he had “authority to control”

Corpay’s actions and “some knowledge of the practices” chal-

lenged. So the court granted summary judgment to the FTC.

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23-12539 Opinion of the Court 31

Next, the district court considered whether permanent in-

junctive relief was appropriate. As the court explained, that relief

was appropriate if “the defendant’s past conduct indicates that

there is a reasonable likelihood of further violations in the future.”

And on this record, the court found that “the mountain of evidence

presented by the FTC demonstrates that [Corpay’s] violations were

far-reaching.” The court also determined that Corpay’s “deceptive

advertising and unfair fee practices were ingrained in the fabric of

the company for years.” And, the court said, “there is unrefuted

evidence in the record that the conduct was intentional — and that

it came straight from the top.”

Beyond these considerations, the court found “that Defend-

ants have in no way ‘recogni[zed] the wrongful nature of their con-

duct’ and, as the business is still fully operational, the ‘occupation’

surely ‘present[s] opportunities for future violations.’”

But the court didn’t stop with Corpay’s past conduct and the

possibility of future violations. Rather, it found that “there is de-

monstrable record evidence — contrary to Defendants’ emphatic

position — that [Corpay]’s unfair practices persist.”

In support, the court cited Corpay’s “own internal study

from 2020” of customer dissatisfaction with fees. The court also

noted that Corpay “ha[d] not provided any evidence that it has im-

plemented an affirmative disclosure process or that it does not au-

tomatically opt customers in to fees for ‘programs’ they have not

requested.” As for the advertisements, the court noted that “the

specific advertisements at issue . . . are no longer circulated.” But

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32 Opinion of the Court 23-12539

even so, the court continued, “such voluntary cessation is not ade-

quate to protect against future violations where [Corpay] is easily

able to put forth similar ads anew.” And overall, the court rea-

soned, “because the harm involved small amounts [of ] losses

spread to many people, the public interest in enjoining future con-

duct is further increased.”

In sum, the district court found “though some of [Corpay]’s

unlawful practices have ceased, others continue and, further,

[Corpay]’s past repetitive ‘conduct indicates that there is a reasona-

ble likelihood of further violations in the future.’” So the district

court denied Corpay’s motion for summary judgment as to injunc-

tive relief. Instead, the court determined “some form of perma-

nent injunctive relief is appropriate[.]”

2. Remedial Proceedings

Still, the court concluded that the “specific scope” of that

“relief require[d] additional consideration.” To determine the ap-

propriate scope, the court held an evidentiary hearing.

At the hearing, Corpay explained that it reformed its disclo-

sures in advertisements. It said that its disclosures now had clarify-

ing language in the same font, on the same page or medium, as its

advertised claim. The company also insisted it no longer advertises

“fuel only” and “no transaction fees” cards and has generally

cleaned up advertisements. But the FTC maintained that Corpay’s

ads continued to promote “per-gallon savings with fine-print foot-

notes.”

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23-12539 Opinion of the Court 33

As for its billing practices, Corpay said that under its post-

2018 reformed payment system, now 85% of customers pay online,

8% pay by phone, and 7% pay by mail. Corpay also represented

that since 2020, it has reformed its product offerings to center

around “packages” (regular, plus, and premium) at different

monthly price points. These “packages,” Corpay explained, re-

place most of the challenged add-on fees for new customers. So

since 2020, Corpay asserted, it has not separately charged new cus-

tomers for FleetDash, Accelerator Rewards, Fraud Protector, and

the Convenience Network Surcharge. Since 2020, Clean Ad-

vantage has also been a separate product that customers can pur-

chase. And since 2017, new customers have not been subject to the

“minimum program fee.”

Still, Corpay continues to assess new customers the “high

risk fee” if they make late payments or have low credit scores. And

Corpay notifies these customers of the high-risk fee through only

the Fleet Management Report.

Plus, Corpay’s pre-2020 existing customers are still enrolled

in and charged their separate fees under the old model. At the time

of the hearing (October 2022), those pre-2020 customers made up

about 65 to 70% of Corpay’s customers.

Corpay justified its continued assessment of those fees based

on its Express Informed Consent Project. Under that Project,

Corpay said, by October 2022, 96% of its pre-2020 customers had

affirmatively consented to the new terms and conditions. Corpay

also claimed it modeled its new hyperlinked-terms-and-conditions

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34 Opinion of the Court 23-12539

structure after the practices of companies like Bank of America and

Capital One.

The FTC took issue with Corpay’s justification of its fees. It

asserted that as few as 4% of customers actually clicked to view the

terms and conditions.5 And the FTC highlighted four customer

complaints from 2022 about deceptive fee billing.

At the hearing, the court announced that it wasn’t “100 per-

cent convinced . . . that a perfect form of indicating informed con-

sent is the ultimate talisman of success[.]”

In an effort to resolve the case, the court recommended me-

diation. But the parties weren’t able to negotiate a resolution.

So on June 8, 2023, the district court issued a 22-page order

granting the FTC a permanent injunction. As the court recog-

nized, “[t]he Complaint charges that Defendants have engaged in

deceptive and unfair acts or practices in violation of Section 5 of

the FTC Act . . . in the promoting, offering for sale, and servicing

of [Corpay’s] fuel card products[, and t]he Complaint seeks perma-

nent injunctive relief . . . for the Defendants’ deceptive and unfair

acts or practices as alleged therein.” Then the court found that “a

5 Corpay maintains it does not keep complete data on the number of clicks on

the Terms and Conditions, and the data the FTC cites is incomplete, repre-

senting only the minimum number of customers who clicked the link. Noting

the data goes back to January 2017, Corpay also asserts the figure does not

come from the “Express Informed Consent Project” but “from a completely

different portion of the website.”

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23-12539 Opinion of the Court 35

permanent injunction containing the provisions” in the order was

“proper.”

That injunction prohibits deceptive advertising and failure to

credit timely payments, requires increased disclosure in advertise-

ments, and contains compliance mechanisms. But most relevantly

for this case, the court also permanently restrained Corpay from

charging for items without first obtaining a customer’s express in-

formed consent after Corpay “conspicuously disclose[d]” all related

information:

Defendants are permanently restrained

and enjoined from selling or charging

for Add-On Products or Services with-

out first securing a customer’s Express

Informed Consent to charge for each

particular Add-On Product or Service

charged. In obtaining Express Informed

Consent, Defendants must Clearly and

Conspicuously disclose all required in-

formation for each Add-On Product or

Service.

Defendants . . . in connection with Pay-

ment Products, are permanently re-

strained and enjoined from billing a

consumer for any charge unless Defend-

ants have obtained the consumer’s Ex-

press Informed Consent to that charge.

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36 Opinion of the Court 23-12539

Defendants . . . are permanently re-

strained and enjoined from billing exist-

ing consumers for any Add-On Products

or Services and fees for which Defend-

ants have not previously secured the

consumer’s Express Informed Consent.

The order defines “Express Informed Consent” to require

several components. And to avoid confusion, the order specifies

examples that don’t qualify as “Express Informed Consent.” In par-

ticular, the order requires “Express Informed Consent” to consist

of an affirmative act that, based on the circumstances, clearly

shows the customer agreed to the charge:

[A]n affirmative act communicating un-

ambiguous assent to be charged, made

after receiving and in close proximity to

a Clear and Conspicuous disclosure of

the following information related to the

charge(s): (a) the product, service, fee,

or interest associated with the charge;

(b) the specific amount of the charge; (c)

whether the charge is recurring and the

frequency of recurrence; and (d) under

what circumstances the charge will be

incurred. The following are examples

of what does not constitute Express In-

formed Consent to be charged:

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23-12539 Opinion of the Court 37

1. Assent obtained solely

through the use or continued

use of Corporate Defendant’s

Payment Products;

2. Assent that Corporate De-

fendant reserves the right to

change the amount or terms

of the charge, without sepa-

rately having obtained from

the consumer an affirmative

action communicating assent

for the particular change in

the amount or terms of the

charge;

3. Assent to more than one charge

through a single expression of as-

sent;

4. Assent obtained only after a

consumer has been charged,

including through disclosure

on the consumer’s billing

statement, without a separate

affirmative act of assent by

the consumer; and

5. Assent obtained solely

through any practice or user

interface that has the

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38 Opinion of the Court 23-12539

substantial effect of subvert-

ing or impairing consumer

autonomous decision-making

or choice, including but not

limited to using text that is

not easily legible. Material

terms may not be disclosed be-

hind a hyperlink or tooltip but

can be disclosed in a dropdown

icon or pop-up that requires con-

sumers to provide assent immedi-

ately after the disclosure of the

material terms . . . .

The order defines “Clear and Conspicuous” as “a required

disclosure [that] is difficult to miss (i.e., easily noticeable) and easily

understandable by ordinary consumers, including in all of the fol-

lowing ways: . . . 4. In any communication using an interactive

electronic medium, such as the Internet or software, the disclosure

must be unavoidable.”

Corpay now appeals the district court’s order granting sum-

mary judgment against it and Clarke. It also seeks vacatur of the

Express Informed Consent provisions of the permanent injunction,

independent of the liability decision.

II. DISCUSSION

Corpay raises three principal challenges to the district

court’s judgment: that the court (1) improperly granted summary

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23-12539 Opinion of the Court 39

judgment on all five counts of the of the FTC’s complaint; (2) erred

in granting summary judgment as to Clarke’s personal liability; and

(3) exceeded its equitable authority in fashioning the “Express In-

formed Consent” portions of the permanent injunction.

For the most part, we disagree. The FTC presented undis-

puted evidence that entitles it to judgment as a matter of law on all

five counts against Corpay. And it has similarly met its burden on

four counts against Clarke. But we agree that the FTC has not met

its burden to show the absence of a genuine dispute of material

fact as to Clarke’s liability on Count II. See Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986).

As for the “Express Informed Consent” provisions of the

permanent injunction, we conclude that the district court didn’t

abuse its discretion. Rather, the court acted within its traditional

equitable authority. So we affirm the grant of a permanent injunc-

tion against Corpay. But we vacate the injunction against Clarke

and remand to the district court to account for the lack of summary

judgment on Count II.

Our discussion proceeds in four parts. First, we review the

district court’s grant of summary judgment on the three deceptive

advertising counts (Counts I–III). Second, we consider the billing-

practice counts (Counts IV and V). Third, we address Clarke’s per-

sonal liability. Finally, we evaluate the scope of the permanent in-

junction.

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40 Opinion of the Court 23-12539

A. The district court correctly granted summary judgment to

the FTC on Counts I through III alleging deceptive adver-

tising.

We begin with the district court’s decision granting sum-

mary judgment on Counts I through III, the deceptive-advertising

counts. We review de novo a grant of summary judgment. McGriff

v. City of Miami Beach, 84 F.4th 1330, 1333 (11th Cir. 2023). Sum-

mary judgment is appropriate when “no genuine dispute as to any

material fact” exists “and the movant is entitled to judgment as a

matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)).

We have a genuine dispute of material fact only if a “reason-

able jury could return a verdict for the nonmoving party.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party

bears the burden of showing the absence of a genuine dispute. Ce-

lotex Corp., 477 U.S. at 323. Once the moving party does so, the

opponent “must do more than simply show that there is some met-

aphysical doubt as to the material facts . . . . ” Scott v. Harris, 550

U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Ra-

dio Corp., 475 U.S. 574, 586–587 (1986)). And when the record “bla-

tantly contradict[s]” one side’s version of events so much so that

“no reasonable jury could believe it,” a court need not adopt that

version in deciding summary judgment. Id.

Corpay does not challenge the overarching legal standard

under which the district court evaluated its advertisements. In-

stead, it argues that the district court improperly resolved genuine

disputes of material fact relating to all three counts.

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23-12539 Opinion of the Court 41

To frame our discussion, we start with the governing stand-

ard under § 5(a) of the FTC Act, 15 U.S.C. § 45(a). To establish

deceptive advertising, the FTC must show that (1) the defendant

made a representation; (2) the representation was likely to mislead

reasonable customers acting under the circumstances; and (3) the

representation was material. FTC v. On Point Cap. Partners, LLC, 17

F.4th 1066, 1079 (11th Cir. 2021). A practice may qualify as decep-

tive without proof of intent. Orkin Exterminating Co. v. FTC, 849

F.2d 1354, 1368 (11th Cir. 1988).

We review de novo the district court’s decision to grant sum-

mary judgment. So in conducting our review, we assess the evi-

dence in the light most favorable to Corpay as the non-moving

party. Scott, 550 U.S. at 380.

Generally, whether an advertisement is likely to mislead rea-

sonable consumers presents a question of fact. See On Point, 17

F.4th at 1079–80. But we may resolve that question on summary

judgment “if the evidence is so one-sided that there can be no

doubt about how the question should be answered.” AutoZone, Inc.

v. Strick, 543 F.3d 923, 929 (7th Cir. 2008) (quotation marks omit-

ted). Here, the undisputed evidence establishes that each set of ad-

vertisements made material, false representations. As a result, the

district court properly entered summary judgment for the FTC on

all three counts. We address each in turn.

1. Count 1: “Per Gallon Discount” Advertisements

First, we consider the “per gallon” advertisements. The dis-

trict court concluded that no reasonable factfinder could disagree

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42 Opinion of the Court 23-12539

that “the net impression of the representations in the ads . . . prom-

ise that consumers would be afforded certain per-gallon savings

throughout the Fuelman Network and wherever MasterCard is ac-

cepted, without condition or caveat.” Corpay doesn’t challenge the

materiality of these representations. It also doesn’t dispute that

customers failed to receive the advertised discounts. And after re-

viewing the content of these advertisements, we agree with

Corpay’s determinations in these regards. As we’ve described,

these ads generally contained a central, large-font claim to per-gal-

lon discounts with small-print disclosures and caveats that effec-

tively negated much, if not all, of the advertised savings.

Corpay instead contends that certain caveats and disclaimers

created factual disputes about whether the ads were deceitful. In

support, Corpay makes six assertions: (1) some of the advertise-

ments contained language that savings would be “up to” the speci-

fied amount; (2) Corpay presented evidence that its customers

were “sophisticated,” so they would have understood the savings

to have caveats; (3) Corpay disputed evidence that customers com-

plained about discounts; (4) some but not all the ads’ disclosures

reserved the right to alter the discounts; (5) Corpay did not have to

reserve the right to alter its discounts because that’s an industry

standard term; and (6) most of the advertisements contained text

with asterisks that led to the small-print disclosures.

We are not persuaded.

First, that a minority of advertisements promised savings

“up to” a certain amount does not create a dispute of material fact.

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23-12539 Opinion of the Court 43

As our sister circuits have recognized, “each advertisement must

stand on its own merits; even if other advertisements contain accu-

rate, non-deceptive claims, a violation may occur with respect to

the deceptive advertisements.” FTC v. E.M.A. Nationwide, Inc., 767

F.3d 611 (6th Cir. 2014) (citation and quotation marks omitted); see

also Removatron Int’l Corp. v. FTC, 884 F.2d 1489, 1497 (1st Cir. 1989).

And most of Corpay’s ads in this category omitted the “up to” qual-

ifier. So even when we consider the few that included the “up to”

language, it doesn’t absolve Corpay of its violations.

Second, Corpay’s evidence that altering rebates with disclo-

sure is an “industry-standard” practice doesn’t create a triable issue.

The relevant question is whether Corpay changed rebates without

disclosure. And the record shows it did.

Third, Corpay’s reliance on the supposed sophistication of

its customer base also fails. The only evidence Corpay cites to sup-

port its argument is that it does business with large, multinational

corporations like Coca-Cola and FedEx. But even Corpay concedes

that, at most, these brands make up just 10% of its business. And

it doesn’t dispute that the vast majority of its customers lack similar

sophistication.

Fourth, whether customers complained does not raise a ma-

terial fact. Actual deception is not an element of an FTC deceptive-

advertising claim; the question is whether an ad is likely to mislead.

See On Point, 17 F.4th at 1079. A false advertisement can be likely to

deceive even if no consumer complains. And in any case, the dis-

trict court excluded the expert report Corpay relies on to dispute

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44 Opinion of the Court 23-12539

that customers complained. But even if it hadn’t, that report did

not examine the advertisements at issue.

Finally, Corpay’s disclaimers don’t save its advertisements.

Disclaimers or qualifying language may in some circumstances dis-

pel an otherwise misleading impression. But as the Ninth Circuit

has explained, that’s not the case when a disclaimer is small, ambig-

uous, or contradicted by the body of the ad. See FTC v. Cyber-

space.Com LLC, 453 F.3d 1196, 1200–01 (9th Cir. 2006) (“A solicita-

tion may be likely to mislead by virtue of the net impression it cre-

ates even though the solicitation also contains truthful disclo-

sures.”).

The First Circuit has reached the same conclusion. FTC v.

Direct Mktg. Concepts, Inc., 624 F.3d 1, 12 (1st Cir. 2010). It has said

that disclaimers “are not adequate to avoid liability unless they are

sufficiently prominent and unambiguous to change the apparent

meaning of the claims and to leave an accurate impression.” Id.

(quotation marks omitted).

Corpay’s ads fall into the category of ads with insufficient

disclosures. The disclosures were too small to suggest that con-

sumers actually read them. After all, Corpay’s own employees had

special, larger versions of the disclosures so they could read them.

And even if the consumers were able to and did read the dis-

claimers, the disclaimers contained vague, confusing, and arguably

contradictory terms. Many disclaimers didn’t warn that Corpay

could discontinue discounts without notice after a few months or

with insufficient purchases. And they directed consumers to vague

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23-12539 Opinion of the Court 45

terms and conditions or customer service. Most tellingly, many

disclaimers excluded discounts from major retailers that the body

of the ads featured prominently as providing discounts. Plus, noth-

ing in the disclaimers gave customers notice that the company “had

[issued] minimal/no [small-to-medium sized business] rebates

since the beginning of 2015.” In short, the undisputed evidence

shows that Corpay’s “per-gallon discount” advertisements were de-

ceptive as a matter of law. 6

2. Count II: “Fuel Only” Advertisements

We turn next to Count II and the “Fuel Only” ads. The dis-

trict court didn’t err in granting summary judgment to the FTC on

this count.

Corpay’s ads represented that it could restrict its cards to

“Fuel Only” purchases. Corpay doesn’t dispute this. Nor does it

challenge the district court’s conclusion that this representation

was material. Instead, Corpay argues that a genuine dispute exists

6 Under the less demanding clearly erroneous standard of review (as opposed

to the more demanding de novo standard under which we review a grant of

summary judgment like the one here), we have determined that a district

court did not err when it found that “disclosures written in relatively smaller

and pale-colored font” did not cure website “language in larger, more colorful

font.” On Point, 17 F.4th at 1079–80; see also FTC v. Brown & Williamson Tobacco

Co., 778 F.2d 35, 45 (D.C. Cir. 1985) (similarly upholding under clearly errone-

ous review a finding that a disclosure that was “virtually illegible form, placed

in an inconspicuous corner of [the] advertisements” did not alter an advertise-

ments representation). Those decisions underscore the same principle that

governs here: tiny or otherwise-obscure disclosures can’t overcome a decep-

tive net impression.

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46 Opinion of the Court 23-12539

as to whether the ads’ claim was false and therefore likely to de-

ceive. In support, Corpay relies on testimony from one of its ex-

ecutives asserting that “Fuel Only” cards were limited to authoriz-

ing fuel only purchases “at-the-pump.”

But the record “blatantly contradict[s]” that testimony, Scott,

550 U.S. at 380. Internal documents described “Fuel Only” as a

“misnomer,” acknowledged that “Fuel Only” cards could be used

to purchase snacks, beer, and other non-fuel items, and explained

that “at-the-pump” restrictions were merely optional and applied

only when a customer affirmatively selected them. Even Corpay’s

own expert found 10% of in-store purchases and 3% of all transac-

tions with “Fuel Only” cards were not for fuel. And customers

complained of non-fuel purchases on their “Fuel Only” cards—in

one case, $208,688.05 in purchases of Safeway gift cards.7

On this record, no reasonable jury could find Corpay in fact

limited “Fuel Only” cards to fuel purchases. So the district court

did not err in granting summary judgment.

3. Count III: “No Transaction Fees” Advertisements

7 Corpay cursorily disputes citation to these customer complaints as inadmis-

sible hearsay. But Corpay raises its argument only “in a passing reference . . .

in a footnote.” See LaCroix v. Town of Fort Myers Beach, Fla., 38 F.4th 941, 947

n.1 (11th Cir. 2022). So Corpay forfeits this argument. And in any case, even

if the district court should have excluded these complaints—to be clear, we

don’t opine on this issue—the record still contradicts Corpay’s narrative with-

out them.

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23-12539 Opinion of the Court 47

We consider next Count III of the complaint, which alleges

Corpay falsely represented that some of its cards carried “no trans-

action fees.” Corpay does not dispute that its advertisements ma-

terially represented that its cards had “no transaction fees.” Nor

does it dispute that it charged three of its fees (the Convenience

Network Surcharge, Minimum Program Administration Fee, and

High Risk Pricing)8 on a “per transaction” or “per gallon” basis un-

der some conditions. Instead, Corpay argues that a reasonable jury

could find that customers would understand the term “transaction

fee” as “a fee charged by a company per every transaction (for the

right to make the transaction).” And it contends that its Conven-

ience Network Surcharge, Minimum Program Administration Fee,

and High Risk Pricing were not actually “transaction fees,” even

though Corpay itself referred to them that way and charged them

on a transactional basis to many of its customers.

We think that’s nonsensical. Internally, Corpay referred to

both the Convenience Network Surcharge and High Risk Pricing

as “transaction fees.” Corpay charged both fees “per transaction.”

And though Corpay charged the Minimum Program Administra-

tion Fee “per gallon,” that still qualifies as a “transaction fee” be-

cause the relevant transactions are fuel purchases, which are

8 Corpay disputes that “High Risk Pricing” was a “fee.” Instead, Corpay as-

serts that it’s “a form of risk based pricing” for higher-risk customers. But this

distinction is purely semantics. High Risk Pricing was an additional charge on

every transaction for a certain class of customers. In other words, it was a fee.

Indeed, internal documents indicate that Corpay uniformly applied it to each

transaction for those customers.

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48 Opinion of the Court 23-12539

assessed “per gallon.” So Corpay also charged that fee “per trans-

action.”

We can slice the baloney only so thin. A fee called a “trans-

action fee” that is charged per transaction is a transaction fee. In-

deed, Corpay’s Terms and Conditions allowed the High Risk Pric-

ing fee for any customer who “operates in the trucking or transporta-

tion industry.” So a huge chunk of Corpay’s customer base—busi-

nesses that purchase fuel cards for vehicle fleets—qualified as “High

Risk” and was subject to a blanket fee per transaction.

The only record evidence Corpay cites to support its defini-

tion is the testimony of its executives that the relevant fees were

not considered “transaction fees.” This testimony does not create

a genuine dispute because the record “blatantly contradict[s]” it,

Scott, 550 U.S. at 380.

Corpay’s efforts to liken the three transaction fees to “Over-

draft Fees,” which it asserts are not “transaction fees,” fares no bet-

ter. Overdraft fees are different in kind; they apply when the cus-

tomer spends beyond the funds available in an account. The fees

here, by contrast, kick in under regular use of the card.

No reasonable fact finder could conclude that Corpay did

not charge “transaction fees.” For that reason, we hold that the

district court properly granted summary judgment to the FTC on

Count III, just as it did on Counts I and II.

B. The FTC is entitled to summary judgment on Counts IV

and V of its complaint alleging deceptive and unfair billing

practices.

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23-12539 Opinion of the Court 49

We move next to Corpay’s challenge to the grant of sum-

mary judgment on Counts IV and V of the FTC’s complaint. As

we’ve mentioned, if the FTC is entitled to summary judgment on

Count V, alleging unfair billing practices, it is also entitled to sum-

mary judgment on Count IV. Corpay doesn’t disagree. So we need

address only Count V, alleging unfair practices in violation of the

FTC Act.

Under Section 13(b) of the FTC Act, “[w]henever . . . any

person, partnership, or corporation is violating, or is about to vio-

late” Section 5 of the Act, the FTC may bring an action in federal

district court. (15 U.S.C. § 53(b); id. § 45(a)). Section 5(a) of the

FTC Act, 15 U.S.C. § 45(n), in turn, defines a practice as “unfair” if

it “[1] causes or is likely to cause substantial injury to consumers

which is [2] not reasonably avoidable by consumers themselves and

[3] not outweighed by countervailing benefits to consumers or to

competition.” In assessing whether an act is “unfair,” the FTC

“may consider established public policies as evidence to be consid-

ered with all other evidence.” Id. But “[s]uch public policy consid-

erations may not serve as a primary basis for” determining an act

as “unfair.” Id.

Corpay argues that the district court erred in applying these

standards, so it improperly granted summary judgment on Count

V (and by extension Count IV) as to both the seven unauthorized

fees and the late fees. We disagree. When we construe all genuine

disputes of material fact in favor of Corpay, all its fee-billing prac-

tices qualify as “unfair” under the FTC Act.

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50 Opinion of the Court 23-12539

We first address Corpay’s challenge to the grant of summary

for the seven unauthorized fees. Then, we turn to the late fees.

1. The Unauthorized, Unexpected Fees

Corpay argues that the district court erred in granting sum-

mary judgment on Count V as to the seven unauthorized fees. In

support, it invokes three reasons: the court allegedly (1) applied the

wrong legal standard, (2) overlooked genuine disputes of material

fact, and (3) took no account of the Express Informed Consent Pro-

ject. We find no merit to any of these arguments.

i. Corpay advances the wrong legal standard.

First, we address the proper legal standard. Quoting our de-

cision in LabMD, Inc. v. FTC, 894 F.3d 1221, 1231 (11th Cir. 2018),

Corpay argues that the FTC “must find the standards of unfairness

it enforces in ‘clear and well-established’ policies that are expressed

in the Constitution, statutes, or the common law.” The district

court did not apply that limitation, and Corpay argues it found the

company’s “past practices unfair under Section 5 [only] because the

fees were ‘unexpected.’” Putting aside this oversimplification of

the district court’s reasoning, Corpay’s argument is not persuasive

for four reasons.

First, assuming without deciding that the district court erred

by not applying the standard Corpay says LabMD requires, Corpay

invited any error. We have explained that “invited error” occurs

“when a party induces or invites the district court into making an

error.” United States v. Maradiaga, 987 F.3d 1315, 1322 (11th Cir.

2021) (citation and quotation marks omitted). Here, in their brief

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23-12539 Opinion of the Court 51

opposing the FTC’s summary-judgment motion, Corpay and

Clarke argued as to the governing standard, “To prove unfairness,

the FTC must show that the practice ‘results in substantial con-

sumer injury that is not reasonably avoidable and is not outweighed

by any countervailing benefits to consumers.’” That’s it. Nothing

else. And the standard Corpay invoked in its opposition brief was

precisely the one the district court applied. So Corpay invited any

error the district court may have committed by not applying what

Corpay now says is the standard. “Where a party invites error, the

Court is precluded from reviewing that error on appeal.” Id. (cita-

tion and quotation marks omitted).

Second, even if Corpay could get by its invited error—it

can’t—Corpay is wrong that the quoted language from LabMD

controls the standard. To be sure, in LabMd, we said that practices

the FTC targets must be “unfair under a well-established legal

standard, whether grounded in statute, the common law, or the

Constitution.” See 894 F.3d at 1229 n.24. But that was dictum, and

as we explain in our third point, it was also incorrect.

In LabMD, the FTC ordered LabMD “to install a data-secu-

rity program that comported with the FTC’s standard of reasona-

bleness.” Id. at 1227. LabMD challenged that order on the basis

that the order did not direct it to “cease committing an unfair ‘act

or practice’ within the meaning of Section 5(a).” Id. But rather

than considering whether the FTC’s position that “LabMD’s negli-

gent failure to design and maintain a reasonable data-security pro-

gram invaded consumers’ right of privacy and thus constituted an

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52 Opinion of the Court 23-12539

unfair act or practice,” we “assume[d] arguendo” that it did. Id. at

1231. Then we said the order was unenforceable, anyway, because

the FTC’s order’s prohibitions weren’t specific enough. See id. at

1237. Because we didn’t have to decide—and we never in fact de-

termined—whether LabMD’s practices were “unfair” to resolve

LabMD’s petition, the quoted statement from LabMD was dictum.

United States v. Caraballo-Martinez, 866 F.3d 1233, 1244 (11th Cir.

2017) (“[D]icta is defined as those portions of an opinion that are

not necessary to deciding the case then before us.”) (citation and

quotation marks omitted). “And dicta is not binding on anyone for

any purpose.” Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir.

2010).

But third, Corpay (and LabMD) gets the proper standard for

evaluating “unfair” practices wrong. In construing a statute, we

always start (and often end) with the text. Heyman v. Cooper, 31

F.4th 1315, 1318 (11th Cir. 2022). Under section 45(n), a practice

cannot be “unfair unless the act or practice causes or is likely to

cause substantial injury to consumers which is not reasonably

avoidable by consumers themselves and not outweighed by coun-

tervailing benefits to consumers or to competition.” 15 U.S.C. §

45(n) (emphasis added). As “unless” conveys, the three factors that

follow it are mandatory for a finding that a practice is “unfair.” See,

MERRIAM-WEBSTER, “UNLESS,” (last visited Oct. 13, 2025),

https://perma.cc/LMR9-2FST (defining “unless” to be a conjunc-

tion signaling “except on the condition that . . . .”).

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23-12539 Opinion of the Court 53

By contrast, Section 45(n) continues, stating that “[i]n deter-

mining whether an act or practice is unfair, the Commission may

consider established public policies as evidence to be considered with

all other evidence. . . .” 15 U.S.C. § 45(n) (emphasis added). As the

permissive “may” indicates, the FTC has discretion to consider

“public policies” when deciding a practice is “unfair.” United States

v. Rodgers, 461 U.S. 677, 706 (1983) (“The word ‘may,’ when used

in a statute, usually implies some degree of discretion.”). But if it

does so, the FTC must balance those “public policies” with other

evidence that might contraindicate them. See 15 U.S.C. § 45(n).

The statute goes so far as to mandate that “[s]uch public policy con-

siderations . . . not serve as a primary basis for” determining an act

“unfair.” Id. Put simply, the statutory text unambiguously does not

require the FTC to make a showing that well-established public pol-

icies deem an act “unfair.”

But fourth, even if we were to adopt LabMD’s “well-estab-

lished policies” dicta—as should be clear by now, we don’t—the

FTC would still be entitled to summary judgment as to the “unex-

pected” fees. The FTC offers several “well-established” common-

law policies that establish Corpay’s conduct as unfair. For starters,

we have held “[c]aveat emptor [“buyer beware”] is not the law in this

circuit.” FTC v. IAB Mktg. Assocs. LP, 746 F.3d 1228, 1233 (11th Cir.

2014). And the FTC has offered a “mountain of evidence,” as the

district court described it, that the company didn’t clearly inform

customers of these fees before and after the sales process and didn’t

clearly disclose that these fees were optional upon automatic en-

rollment. So Corpay misrepresented its product to customers, and

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54 Opinion of the Court 23-12539

under the law of this circuit, customers are not on the hook for

these misrepresentations.

The FTC also points out that the common law in many

states prohibits “procedurally unconscionable” contracts. In Geor-

gia, for example, “some factors courts have considered in determin-

ing whether a contract is procedurally unconscionable include[] the

age, education, intelligence, business acumen and experience of

the parties, their relative bargaining power, the conspicuousness

and comprehensibility of the contract language, the oppressiveness

of the terms, and the presence or absence of a meaningful choice.”

NEC Tech., Inc. v. Nelson, 478 S.E.2d 769, 771–72 (Ga. 1996).

The FTC presented evidence that Corpay has not genuinely

disputed that the company purposely obfuscated its oppressive

terms. For instance, Corpay made its Terms and Conditions dense,

confusing, and difficult to access for several years; did not clearly

disclose the optional nature of certain fees; and made it difficult to

discover which fees it charged with vague language on “Fleet Man-

agement Reports.” Plus, Corpay had uneven bargaining power

with its relatively unsophisticated customer base, and Corpay used

that power to set up a system to charge them fees without their

knowledge.

Plus, even under the governing contract-law principle

Corpay identifies, “inquiry notice,” Corpay’s fee practices fail. Un-

der “inquiry notice,” if a party lacks “actual notice” of a contract’s

terms, whether the terms bind them “often turns on whether the

contract terms were presented to the offeree in a clear and

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23-12539 Opinion of the Court 55

conspicuous way.” Starke v. SquareTrade, Inc., 913 F.3d 279, 289 (2d

Cir. 2019). A contract must be a “manifestation of mutual assent.”

Id. But Corpay doesn’t offer evidence to genuinely dispute that be-

fore its Express Informed Consent project, it didn’t offer its fee

terms in a “clear and conspicuous way.”

Indeed, it’s undisputed that before this project, three fees

were not even in the Terms and Conditions. And the company

made the Terms and Conditions difficult to read, which required it

provide a reader-friendly version for its own employees. Any testi-

mony to the contrary from Corpay’s executives is “blatantly con-

tradicted by the record,” Scott, 550 U.S. at 380, so it doesn’t create a

genuine dispute of material fact.

Even after Corpay’s Express Informed Consent Project,

Corpay didn’t give its customers inquiry notice for many fees. In

this respect, the new Terms and Conditions weren’t clear as to

some of the fees. For example, though they described Accelerator

Rewards, Clean Advantage, and Fraud Protector as “program fees,”

they didn’t clearly disclose them as optional. And by October 2020,

according to Corpay’s own expert, ten months after the FTC’s com-

plaint, 18.8% of customers still had not expressly consented to the

new Terms and Conditions.

In sum, Corpay’s LabMD argument fails because (1) Corpay

invited any error, (2) the LabMD standard is dictum, (3) the LabMD

standard violates the plain text of the governing statute, and (4)

even if the LabMD standard applied, the FTC satisfied it.

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56 Opinion of the Court 23-12539

ii. Corpay doesn’t present a genuine dispute over whether it un-

fairly hid fees.

Corpay also argues that even under the standard the district

court applied, the district court erred in granting the FTC sum-

mary judgment. In Corpay’s view, the district court resolved gen-

uine disputes of material fact to decide that customers were (1) sub-

stantially injured in a manner that (2) wasn’t reasonably avoidable.

We disagree.

We begin by recognizing Corpay doesn’t dispute that it

charged customers the relevant fees. Instead, Corpay asserts that a

genuine dispute exists over whether it disclosed the fees or the fees

were instead “unexpected.”

Corpay’s case lacks the gas to scale the FTC’s “mountain of

evidence.” Internal documents revealed that for several of the fees,

Corpay automatically enrolled customers without their

knowledge. And internal emails and customer complaints re-

flected that Corpay didn’t tell customers of these fees during the

sales process. Plus, the Terms and Conditions were dense, vague,

and largely inaccessible, available only by mail for at least three

years. Corpay also hid the fees on invoices and failed to detail them

on billing reports. When the FTC conducted a telephonic survey,

it learned that only 7.02% of customers were informed of fees.

And in eight internal surveys from 2016–2020, Corpay itself iden-

tified its fee practices confused and surprised its customers.

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23-12539 Opinion of the Court 57

To top it off, internal documents showed that Corpay inten-

tionally didn’t inform customers and made it difficult for them to

learn about fees.

In response, Corpay fails to offer evidence that creates a gen-

uine dispute of material fact over whether it charged undisclosed

fees. Corpay mainly cites its executives’ testimony that Corpay dis-

closed its fees with its Terms and Conditions and trained its sales

representatives to discuss fees. But either the record “blatantly con-

tradict[s]” that testimony, Scott, 550 U.S. at 380, or that testimony

doesn’t conflict with the FTC’s evidence.

Corpay next points to its experts’ assertions that the FTC’s

telephonic survey lacks methodological reliability. But even if we

disregard the survey, the record unambiguously shows that Corpay

notified only very few of its customers of changes. Other evidence,

as we’ve discussed, also overwhelmingly supports the FTC’s claims

that Corpay didn’t disclose its fees or obtain its customers’ consent

before imposing its fees.

Corpay tries to get out from under the evidence by relying

on expert testimony that customers’ fuel-purchase rates didn’t

change after Corpay assessed them fees. But that doesn’t dispute

that the company didn’t disclose the fees in the first place. Nor does

Corpay fare any better with its argument that it used a mailer to

notify customers of the three fees that were not in the Terms and

Conditions. As the district court noted, those mailers didn’t unam-

biguously explain that the fees were optional. They also didn’t seek

further authorization from the customers.

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58 Opinion of the Court 23-12539

To conclude, Corpay failed to identify evidence that creates

a genuine dispute that it charged undisclosed fees.

iii. Evidence of the “Express Informed Consent Project” does not

preclude summary judgment for the FTC.

Corpay also asserts the district court erred by not consider-

ing its “Express Informed Consent Project” when it granted sum-

mary judgment. But this evidence does not warrant vacating the

judgment. As we’ve explained, by October 2020, ten months after

the FTC’s complaint, 18.8% of customers still had not expressly

consented to the new Terms and Conditions. And Corpay hasn’t

established that it even sent these new Terms and Conditions to the

customers it had before the FTC filed its complaint. So on this rec-

ord, the district court did not err in concluding that no genuine dis-

pute existed over whether Corpay was charging existing customers

fees without their express, informed consent; Corpay was.

As a result, the district court did not err in granting sum-

mary judgment to the FTC on Counts IV and V of its complaint as

those claims relate to Corpay’s add-on fee-billing practices.

2. Erroneous Late Fees

The district court also properly granted summary judgment

to the FTC for Corpay’s late-fee practices. Corpay does not contest

that before 2018 it unfairly assessed late fees. Instead, Corpay

urges, the FTC Act requires the Commission to show that, at the

time the FTC filed its complaint, Corpay “[was] violating, or [was]

about to violate” the FTC Act. 15 U.S.C. § 53(b). This burden, the

company asserts, demands a showing that Corpay’s “existing or

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23-12539 Opinion of the Court 59

impending conduct” was unlawful at time of complaint. See FTC v.

Shire ViroPharma, Inc., 917 F.3d 147, 156 (3d Cir. 2019). Because the

district court relied primarily on evidence from 2017 and 2018, and

Corpay changed its online payment system in 2018, Corpay con-

tends the FTC’s evidence was too “stale” to support summary judg-

ment on a complaint it filed in 2019.

Our sister circuits have split on whether the FTC must show

that the company’s “existing or impending” practices violate the

FTC Act at the time of the complaint. Compare Shire ViroPharma,

917 F.3d at 156 (requiring the FTC to plead “existing or impending

conduct”) with FTC v. Evans Products Co., 775 F.2d 1084, 1087 (9th

Cir. 1985) (allowing an action where the conduct was only “likely

to recur”); FTC v. Accusearch Inc., 570 F.3d 1187, 1191 (10th Cir. 2009)

(same). But we need not weigh in on this split. Even assuming the

FTC had to show that Corpay’s “existing or impending” practices

violated the FTC Act when the FTC filed its complaint, no genuine

dispute exists over whether the FTC has met that burden.

To start, Corpay updated only its online payment system in

2018. But the district court granted summary judgment because

of late fees Corpay assessed on mail and phone payments as well.

And Corpay doesn’t argue that those forms of payment changed in

2018. So right off the bat, summary judgment remains appropriate

at least with respect to late fees Corpay assessed on those pay-

ments.

And as for the online payments, much of the genuinely un-

disputed evidence from 2017 and 2018 remains probative for the

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60 Opinion of the Court 23-12539

claim that Corpay was still engaging in unfair practices in 2019.

Several internal surveys and customer complaints revealed wide-

spread problems with improper late fees. Not only that, but the

FTC’s telephonic survey, which it conducted in 2020—two years af-

ter Corpay adopted its new online-payment system—found 37.90%

of Corpay customers had been improperly assessed late fees. Faced

with this evidence, Corpay presents no evidence that customer

complaints for late fees stopped in 2019.

Finally, Corpay admits to continuing certain late-fee prac-

tices in 2019 from 2017 and 2018, when even it does not dispute it

violated the FTC Act. It still marks payments it receives after 4 p.m.

ET as late. Corpay also doesn’t contest that it still makes payments

due on weekends and marks them late if it receives them after 4

p.m. on Fridays. The district court relied on these facts when it

entered summary judgment against Corpay, and these facts didn’t

change from 2018 to 2019.

So though Corpay changed its online-payment system in

2018, it has not created a genuine dispute that when the FTC filed

its complaint, Corpay continued to wrongly charge customers late

fees.

C. The FTC is entitled to summary judgment as to the personal

liability of Clarke on all but Count II.

Now that we’ve determined that the FTC is entitled to sum-

mary judgment on all five counts against Corpay, we move to the

FTC’s claims against Ronald Clarke personally.

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23-12539 Opinion of the Court 61

The parties don’t contest the proper legal standard for when

an individual is liable for a corporation’s violation of the FTC Act.

Under our precedents, “the FTC must show that the individual had

‘some knowledge of the practices’ and that the individual either

‘participated directly in the practice or acts or had the authority to

control them.’” On Point, 17 F.4th at 1083. Corpay concedes Clarke

had “authority to control” its conduct. So we assess whether the

FTC proved without genuine dispute that Clarke had “some

knowledge” of Corpay’s illegal conduct.

Our precedents have yet to define the meaning of “some

knowledge.” But as our sister circuits have recognized, “showing

that the individual had actual knowledge of the deceptive conduct,

was recklessly indifferent to its deceptiveness, or had an awareness

of a high probability of deceptiveness and intentionally avoided

learning of the truth,” satisfies that standard. FTC v. Ross, 743 F.3d

886, 892 (4th Cir. 2014); accord FTC v. World Media Brokers, 415 F.3d

758, 764 (7th Cir. 2005).

As the FTC points out, this is not a “high bar.” For example,

we have found the CEO of a scam operation had “some

knowledge” even though he claimed he was “only involved in high-

level decision making and had no knowledge of or control over the

contents of [the] websites.” On Point, 17 F.4th at 1083. There, a set

of slides the CEO created describing the company’s services and

business model and his general awareness of the company’s fi-

nances and operations satisfied the requirement. Id. at 1083-84. In

another case, we found an executive had some knowledge of its

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62 Opinion of the Court 23-12539

company’s misrepresentations because he had received a report

from a compliance officer that included that information. See FTC

v. IAB Mktg. Associates, LP, 746 F.3d 1228, 1233 (11th Cir. 2014).

The FTC easily clears the “some knowledge” hurdle. The

evidence of Clarke’s knowledge of the conduct underlying four of

the five counts is overwhelming and indisputable.

We begin with Count I, the “per-gallon” discount ads. As

the district court pointed out, Clarke’s subordinates informed him

that “customers often paid more than the pump price of fuel de-

spite per-gallon savings promised.” And they let him know that

“[s]mall and medium-sized business customers received ‘mini-

mal/no’ rebates for at least two years.” Clarke also received a Pow-

erPoint describing customer complaints about discounts. But de-

spite this information, in a 2017 call with company shareholders,

he boasted about the company’s discounts and rebates.

As for the “no transaction” fee ads that underlie Count III,

Clarke approved the Minimum Program Administration Fee. And

at the shareholder meeting, he discussed the revenue from both the

Minimum Program Administration Fee and “high-risk credit fees.” 9

True, the FTC and the district court don’t acknowledge that he dis-

cussed specifically the “no transaction fee” ads. But the record is

clear that Clarke knew of the underlying fees the Corpay ads ad-

vertised. Plus, Clarke knew customers had complained that

9 Clarke even referred to “High Risk Pricing” as “high-risk credit fees,” despite

the company’s insistence that “High Risk Pricing” is not a “fee.”

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23-12539 Opinion of the Court 63

Corpay wrongfully assessed them these fees. That information

gave him “some knowledge” that Corpay was misrepresenting the

existence of these fees.

The evidence is most damning against Clarke on Counts IV

and V of the complaint, relating to the company’s unfair-billing

practices. As the district court highlighted, subordinates informed

Clarke that Corpay’s “practices with regard to disclosing fees in its

[Terms and Conditions] are vague, while its methods of disclosing

fees on invoices and notifying customers of new or increased fees

are nearly nonexistent.” And Corpay’s shareholders and corporate

partners contacted Clarke to inform him of customer complaints

about the company’s fee practices. Not only that, but Clarke re-

ceived and read public reports detailing Corpay’s unfair-fee prac-

tices. Faced with this information, Clarke chose to dismiss it all as

“fake news.” That betrays at minimum a reckless indifference to

the truth.

Clarke also specifically addressed reports of unfair late fees

at the 2017 shareholding meeting. But he responded by asking his

subordinates for “opportunities to get more late fee revenue . . . .”

So Clarke had “some knowledge” of Corpay’s “unauthorized” fees

and its erroneous late fees.

Given the low bar for establishing “some knowledge,” and

all this evidence, no reasonable jury could find for Clarke on

Counts I, III, IV, and V of the FTC’s complaint.

Still, Corpay seeks to absolve Clarke’s knowledge by arguing

he sought information in “good faith” to bring the company into

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64 Opinion of the Court 23-12539

compliance. But even assuming that’s so, Clarke, with control of

Corpay’s operation, did not cease its unlawful practices. We have

never recognized a “good faith” exception when the “some

knowledge” requirement is met. A truly good-faith actor with “ac-

tual control” and “some knowledge” would end the company’s un-

lawful practices. And in any case, the record doesn’t support that

Clarke was acting in “good faith.” As we’ve noted, he dismissed

concerns with Corpay’s practices as “fake news” and asked his sub-

ordinates to find ways to extract more late fees.

But the FTC has not met its burden on one count of its com-

plaint against Clarke: Count II, concerning the “Fuel Only” ads.

None of the evidence of Clarke’s communications that the FTC

cites speak specifically to the “Fuel Only” ads. And at oral argu-

ment, the FTC could not identify any evidence in the record show-

ing Clarke had “some knowledge” of the “Fuel Only” ads. So we

conclude the district court erred by granting the FTC summary

judgment on this count. We therefore vacate the grant of sum-

mary judgment to the FTC on Count II as to Clarke’s liability.

Thus, the FTC is entitled to summary judgment as to the

personal liability of Clarke on Counts I, III, IV, and V of its com-

plaint, but not on Count II.

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D. The district court did not abuse its discretion fashioning the

Express Informed Consent provisions of the permanent injunc-

tion.

But the grant of summary judgment against Corpay on all

five counts remains. So we turn to the company’s challenge to the

proper scope of the permanent injunction against it.

We review for abuse of discretion both the decision to grant

a permanent injunction and the scope of an injunction.10 Angel

Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d 1200, 1208 (11th

Cir. 2008). “An abuse of discretion occurs when a district court

commits a clear error of judgment, fails to follow the proper legal

standard or process for making a determination, or relies on clearly

erroneous findings of fact.” FTC v. Nat’l Urological Grp., Inc., 80

F.4th 1236, 1241 (11th Cir. 2023) (quoting Yellow Pages Photos, Inc.

v. Ziplocal, LP, 846 F.3d 1159, 1163 (11th Cir. 2017)).

Corpay argues that the district court abused its discretion in

fashioning the injunction’s Express Informed Consent provisions.

In this respect, Corpay contends the district court exceeded its re-

medial authority by “[o]rdering that [Corpay’s] fee disclosures be

10 Corpay asserts that “[t]he scope of the district court’s remedial authority

under [15 U.S.C. § 53(b)] is a ‘purely legal question’ reviewed de novo.” But

the case it cites for this proposition doesn’t support that proposition. Rather,

it states only that whether the proper interpretation of the statutory term “per-

manent injunction” includes the authority to order “monetary relief” is a

“purely legal question.” See AMG Capital Mgmt., 593 U.S. at 74. As we explain

above, under our precedents, we review the scope of a “permanent injunc-

tion” for abuse of discretion.

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66 Opinion of the Court 23-12539

‘unavoidable’”; “[f ]orbidding [Corpay] from continuing to make

disclosures via hyperlinks”; and “[f ]orbidding [Corpay] from ob-

taining assent to more than one charge through a single expression

of consent.” Based on these claims, Corpay asks us to vacate the

Express Informed Consent provisions in their entirety, or at a min-

imum, to remand with an order to the district court to make the

following modifications:

The sentence “Material terms may not

be disclosed behind a hyperlink or

tooltip but can be disclosed in a

dropdown icon or pop-up that requires

consumers to provide assent immedi-

ately after the disclosure of the material

terms” should be deleted.

The sentence “In any communication

using an interactive electronic medium,

such as the Internet or software, the dis-

closure must be unavoidable” should be

revised to state “In any communication

using an interactive electronic medium,

such as the Internet or software, the dis-

closure must provide a reasonable op-

portunity for the customer to review the

information that is the subject of the

disclosure.”

In the definition of mechanisms that do

not constitute “Express Informed Con-

sent,” the following bullet point should

be deleted: “Assent to more than one

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23-12539 Opinion of the Court 67

charge through a single expression of

assent.”

Because Corpay asserts that the district court exceeded its

authority, we begin by summarizing the scope of the district

court’s remedial authority under the FTC Act. We then address

whether the district court properly granted permanent injunctive

relief. And we conclude by considering whether the district court

properly tailored its injunction to the wrong it was remedying. We

are persuaded it did.

1. The Scope of Remedial Authority Under the FTC Act

Section 13(b) of the FTC Act, 15 U.S.C. § 53(b) authorizes

the Commission to seek and the district court to issue a permanent

injunction “in proper cases . . . and after proper proof.” This pro-

vision permits the district court to “exercise its inherent equitable

power[,]” FTC v. Gem Merch. Corp., 87 F.3d 466, 468 (11th Cir. 1996),

but relief must be “prospective, not retrospective.” See AMG Cap.

Mgmt., 593 U.S. at 76.

A court may certainly enjoin “ongoing” illegal conduct. See

Reich v. Occupational Safety & Health Rev. Comm’n, 102 F.3d 1200,

1202 (11th Cir. 1997). But if “the defendant’s past conduct indicates

that there is a reasonable likelihood of further violations in the fu-

ture,” that may also warrant injunctive relief. SEC v. Caterinicchia,

613 F.2d 102, 105 (5th Cir. 1980) (quoting SEC v. Blatt, 583 F.2d 1325,

1334 (5th Cir. 1978)).

In determining whether an injunction is appropriate, the dis-

trict court must consider six factors: “the egregiousness of the

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68 Opinion of the Court 23-12539

defendant’s actions, the isolated or recurrent nature of the infrac-

tion, the degree of scienter involved, the sincerity of the defend-

ant’s assurances against future violations, the defendant’s recogni-

tion of the wrongful nature of his conduct, and the likelihood that

the defendant’s occupation will present opportunities for future vi-

olations.” SEC v. Carriba Air, Inc., 681 F.2d 1318, 1322–23 (11th Cir.

1982) (quoting Blatt, 583 F.2d at 1334, n.29). We call these the “Car-

riba Air factors.” Though a court should consider each Carriba Air

factor, it need not make a finding on every one. U.S. Commodity

Futures Trading Comm’n v. S. Tr. Metals, Inc., 894 F.3d 1313, 1328 (11th

Cir. 2018).

When injunctive relief is appropriate, the “injunction must

be narrowly tailored to the proven legal violations and restrain no

more conduct than reasonably necessary.” Fin. Info. Techs., LLC v.

iControl Sys., USA, LLC, 21 F.4th 1267, 1280 (11th Cir. 2021); see also

Cumulus Media, Inc. v. Clear Channel Commc’ns, 304 F.3d 1167, 1178

(11th Cir. 2002) (an “injunction must be ‘narrowly tailored to fit

specific legal violations, because the district court should not im-

pose unnecessary burdens on lawful activity[.]’”) (quoting Starter

Corp. v. Converse, Inc., 170 F.3d 286, 299 (2d Cir. 1999)). Even so, “a

court of equity is free to proscribe activities that, standing alone,

would have been unassailable.” Id. at 1179; see also Planetary Motion

v. Techsplosion, Inc., 261 F.3d 1188, 1204 (11th Cir. 2001). After all,

those “caught violating the [FTC] Act . . . must expect some fencing

in.” FTC v. Colgate-Palmolive Co., 380 U.S. 374, 395 (1965).

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23-12539 Opinion of the Court 69

2. The district court did not err in determining a permanent

injunction was appropriate.

Corpay argues that it was not engaged in ongoing illegal

conduct, and no likelihood of recurrent illegal conduct could sup-

port the Express Informed Consent provisions. We disagree.

To start, Corpay contends that the district court made no

finding that any of its “post-overhaul” practices, after 2019, violated

the law. But the district court did. It found “there is demonstrable

record evidence—contrary to Defendants’ emphatic position—that

[Corpay’s] unfair practices persist.”

What’s more, the record supports the district court’s conclu-

sion, so we can’t say the district court clearly erred. The court cited

a study from 2020 that showed a majority of customers still felt

misled by fees. It also noted Corpay did not provide evidence that

“it does not automatically opt customers in to fees for ‘programs’

they have not requested.” And indeed, at the later evidentiary hear-

ing, Corpay revealed that it was still automatically charging its cus-

tomers from before 2020 the offending fees without additional no-

tice. Plus, at the time of the hearing, Corpay was also still assessing

the High Risk Fee for both new and old customers. At a minimum,

these fees represent the ongoing effects of Corpay’s unlawful con-

duct.

So next, Corpay observes that the district court said Corpay

“has not provided any evidence that it has implemented an affirm-

ative disclosure process.” But as Corpay points out, its new Terms

and Conditions and “Express Informed Consent Project” were in

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70 Opinion of the Court 23-12539

the record when the district court made this finding. Based on this

fact, Corpay asserts that the district made a clearly erroneous find-

ing and did not consider its “post overhaul” practices when decid-

ing whether an injunction was appropriate.

We disagree that the district court clearly erred. Instead, we

understand the district court not to have viewed these “over-

hauled” Terms and Conditions as an “affirmative disclosure.” And

that’s not a clearly erroneous finding. After all, the new Terms and

Conditions don’t even unambiguously convey that certain fees are

optional.

But beyond that, even if we agreed with Corpay that the dis-

trict court clearly erred in finding that Corpay’s illegal conduct per-

sists (we don’t), the court didn’t clearly err in finding a likelihood

that the illegal conduct would recur. For each of the six Carriba Air

factors, the court made findings that it supported with the record.

All counseled in favor of granting a permanent injunction. We

can’t say any of these findings or the court’s overall conclusion that

Corpay was likely to reengage in illegal conduct was clearly erro-

neous.

Corpay also argues that its large investment in its recent le-

gally compliant “overhaul” supports the conclusion that further

court-ordered restrictions are unnecessary. But even if we assumed

Corpay is currently fully compliant with the FTC Act, Corpay’s re-

forms come in the face of the FTC’s litigation. And we must re-

member that “reform timed to anticipate or blunt the force of a

lawsuit offer[s] insufficient assurance that the practice sought to be

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23-12539 Opinion of the Court 71

enjoined will not be repeated.” NAACP v. City of Evergreen, 693 F.2d

1367, 1370 (11th Cir. 1982) (quoting James v. Stockham Valves & Fit-

tings Co., 559 F.2d 310, 354–55 (5th Cir. 1977)). Even Corpay’s own

internal slide described its reason for its “Express Informed Con-

sent Project” as “[t]he FTC alleges that [Corpay’s] terms and con-

ditions are insufficient, and in particular fail to fully disclose certain

fees. We disagree with the FTC’s allegations, but took the oppor-

tunity to improve our terms and conditions.” The company’s be-

havior offers few assurances it won’t revert to unfair practices when

the case ends.

3. The Express Informed Consent provisions were “neces-

sary” to prevent Corpay’s unlawful conduct.

Next, Corpay contends that the district court abused its dis-

cretion by entering the injunction without finding that Corpay’s

Express Informed Consent provisions were necessary to prevent un-

lawful conduct. And, Corpay urges, the district court could not

make that finding. Corpay is wrong on both counts.

To start, the district court made sufficient findings to sup-

port the Express Informed Consent provisions of the injunction.

Rule 65(d)(1)(A) of the Federal Rules of Civil Procedure requires

that “every order granting an injunction and every restraining or-

der must . . . state the reasons why it issued.” The district court

complied with that requirement. Its order first explained that the

FTC had alleged Corpay “engaged in deceptive and unfair acts or

practices,” for which it sought “permanent injunctive relief.” Then,

the order established that it was “proper in this case to issue a

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72 Opinion of the Court 23-12539

permanent injunction containing the provisions set forth” in the

order. Put simply, the district court found it “proper” to hold

Corpay to the Express Informed Consent provisions to remedy the

company’s deceptive and unfair . . . practices.”

Rule 65(d)(1)(A) does not require more. We have never held

that a district court must go into extensive detail when “stat[ing]

the reasons” for its injunction. Nor could we. To be sure, Rule

65(d)(B) and (C) direct that the “terms” of the injunction must be

“state[d] . . . specifically” and the “acts restrained or required” be

“describe[d] in reasonable detail” respectively. But Rule 65(d)(1)(A)

includes no similar requirement for specificity or detail.

Instead, as some of our sister circuits have recognized, to sat-

isfy Rule 65(d)(1)(A), a court need only state the “reasons” with

enough specificity that we can conduct “meaningful appellate re-

view.” See In re Jimmy John’s Overtime Litig., 877 F.3d 756, 766 (7th

Cir. 2017); Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Mun. of San

Juan, 773 F.3d 1, 10 (1st Cir. 2014); Patsy’s Italian Rest., Inc. v. Banas,

658 F.3d 254, 274 (2d Cir. 2011). So we adopt a “a commonsense

construction, not a hypertechnical one,” of Rule 65(d)(1)(A).

Watchtower Bible, 773 F.3d at 10. And under that construction, the

district court need only provide enough detail in its reasons to al-

low us to do our job. See id.

After all, the interests of preserving judicial resources coun-

sel against remanding a case for additional findings when “we

doubt that such action, in the circumstances present here, would

add anything essential to the determination of the merits.” See

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23-12539 Opinion of the Court 73

Withrow v. Larkin, 421 U.S. 35, 45 (1975). So “[w]hile a more elabo-

rate statement of the court’s rationale [may be] helpful . . . , it is

enough [if ] the court ma[kes] the essence of its reasoning plain be-

fore ordering injunctive relief.” See Watchtower Bible, 773 F.3d at 10.

Here, “[t]he district court’s orders, read in conjunction with

the hearing transcripts, chronicle the court’s laudable effort,” ably

explain why the court determined the relief it granted was neces-

sary to remedy Corpay’s illegal conduct. Cf. id. at 9. The district

court concluded that the Express Informed Consent provisions

were “proper” after it held an extensive hearing, the transcripts of

which appear in the record. And as we’ve already discussed, the

court held this hearing after it had first detailed findings supporting

its conclusion in its summary-judgment order that the record war-

ranted a permanent injunction. See Part I.B.1, supra. So we have a

well-grounded understanding of the reasons for the district court’s

decision. This is enough to satisfy Rule 65(d)(1)(A).

We have no trouble understanding why the district court

fashioned the Express Informed Consent provisions of the injunc-

tion. To recap, Corpay argues that the Express Informed Consent

provisions prohibiting fee disclosures from being behind a hyper-

link, requiring disclosures to be “unavoidable,” and requiring a sep-

arate assent for each charged fee aren’t “necessary” to stop or pre-

vent Corpay from engaging again in illegal conduct. But based on

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74 Opinion of the Court 23-12539

this record, we can’t say the district court made a clear error in

judgment in crafting these requirements for two main reasons.11

First, the district court could conclude that express consent,

beyond the typical legal minimum, is necessary to remedy the rem-

nants of unfair billing practices that persist even after Corpay’s

“overhaul.” Pre-2020 customers, who continue to make up 65 to

70% of Corpay’s clients, are still automatically enrolled in fees they

did not originally consent to. And the current Terms and Condi-

tions don’t unambiguously disclose these fees are optional. Plus,

while 96% of these customers clicked to “agree” to the Terms and

Conditions, the evidence shows that as few as 4% actually clicked

to read them. So the district court’s decision to require Corpay to

disclose its fees more prominently was not clear error, given the

need to cure the original lack of consent by longstanding custom-

ers. All three of the provisions Corpay challenges make it easier

for customers to provide their informed consent and to know what

Corpay is charging them for.

Second, the district court could reasonably conclude given

Corpay’s rampant history of illegal acts, that the company needed

constraints beyond the legal minimum to ensure future compli-

ance. The district court found that “unfair fee practices were in-

grained in the fabric of the company for years.” It also found that

11 We may affirm the grant of an injunction on any ground supported by the

record. See Gonzalez v. Governor of Ga., 978 F.3d 1266, 1268 n.2 (11th Cir. 2020).

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23-12539 Opinion of the Court 75

“the conduct was intentional—and that it came straight from the

top.”

Against this backdrop, the court did not clearly err when it

determined it needed to “fence in” Corpay. Colgate-Palmolive Co.,

380 U.S. at 395. Requiring Corpay not to hide disclosures behind a

hyperlink prevents Corpay from making that link harder to find.

After all, Corpay didn’t even have online Terms and Conditions un-

til 2017. Similarly, requiring disclosures to be “unavoidable” pre-

vents Corpay from sticking its customers with new fees without

their knowledge. And given Corpay’s history with dense, small-

print Terms and Conditions, it was also not unreasonable for the

court to have concluded it “necessary” to require separate assent

for each fee. This requirement ensures the company doesn’t inten-

tionally bury fee disclosures in a mountain of confusing text with

only one required consent. In sum, the record here warrants this

relief.

Corpay argues that the FTC offers no evidence that these

reforms will cause more consumers to read fee disclosures. But

that argument misses the point. The goal is to make sure that cus-

tomers who want to know about and understand the fees Corpay

charges can easily do so, and Corpay can’t deceive them. By requir-

ing Corpay to make disclosures “unavoidable,” the court simply re-

quires Corpay to treat its customers fairly. Given the history here,

we can’t say the district made a clear error in judgment in so ruling.

In all, the district court didn’t abuse its discretion fashioning

the Express Informed Consent provisions of its injunction.

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76 Opinion of the Court 23-12539

III. CONCLUSION

For these reasons, we affirm the grant of summary judg-

ment to the FTC with respect to all counts against Corpay, Inc., and

the grant of a permanent injunction with respect to Corpay. We

also affirm the grant of summary judgment against Ronald Clarke

with respect to all but Count II. But we vacate the grant of sum-

mary judgment to the FTC on Count II of its complaint against

Clarke.

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.