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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS:

Lina M. Khan, Chair

Rebecca Kelly Slaughter

Alvaro M. Bedoya

In the Matter of

FLEETCOR TECHNOLOGIES, INC., a

corporation, and

Docket No. D-9403

RONALD CLARKE, individually and as

an officer of FLEETCOR

TECHNOLOGIES, INC.

COMPLAINT COUNSEL’S MOTION TO PARTIALLY LIFT STAY OF

ADMINISTRATIVE PROCEEDINGS TO PERMIT DISPOSITIVE MOTIONS

Pursuant to the Federal Trade Commission’s Rule of Practice 3.22, Complaint Counsel

respectfully request that the Commission partially lift the stay of this administrative action,

which has been in place for more than twenty-one months, for the sole purpose of permitting the

parties to file dispositive motions. As explained below, the FTC’s action on identical claims

before the U.S. District Court for the Northern District of Georgia has now been litigated to

conclusion and has determined that Respondents FleetCor Technologies, Inc., (“FleetCor”) and

Ronald Clarke are liable on all five counts alleged. FTC v. Fleetcor Techs., Inc., 620 F. Supp. 3d

1268 (N.D. Ga. 2022).1 As such, the goal of the stay as stated by the Commission—to avoid the

need for the parties to spend resources litigating the same case in two forums—can and should

In June 2023, having granted summary judgment to the FTC, the district court entered a

permanent injunction against both Respondents and closed the case.

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now be accomplished by permitting this action to be resolved through immediate dispositive

motion practice.

Complaint Counsel seek to promptly file a motion for summary decision based on the

determinations made in the district court action, thereby bringing the small business customers

victimized by Respondents’ unfair and deceptive practices a critical step closer to the hundreds

of millions of dollars of monetary relief that have been withheld from them during the threeyear-plus pendency of the federal court and administrative proceedings.2 Any proceedings and

deadlines in this action other than those directly related to dispositive motion filings should,

however, remain stayed: because all issues necessary to resolve this administrative proceeding

have been fully litigated in the district court, discovery and evidentiary hearing proceedings

would serve no purpose other than to inflict on the parties the burden and expense of duplicative

litigation that the stay was initiated to prevent.

Background

In December 2019, the Commission authorized FTC staff to file in the Northern District

of Georgia a complaint against Respondents under Section 13(b) of the FTC Act, 15 U.S.C.

§ 53(b), seeking both a permanent injunction and equitable monetary relief. The complaint

alleged that Respondents, who market and sell “fuel cards” that can be used to make purchases at

gas stations and similar fueling locations, had violated the FTC Act in two principal ways:

(1) by charging their customers, who overwhelmingly are small businesses, hundreds of millions

of dollars of fees without their consent; and (2) by misleadingly marketing their products, such as

by misrepresenting the discounts available to cardholders.

The proposed order sought through the instant motion to partially lift the stay would afford

Respondents an equal opportunity to file any dispositive motion.

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The parties had conducted full discovery on all claims and defenses in the district court

action and were midway through summary judgment briefing when the Supreme Court issued its

April 2021 decision in AMG Capital Management v. FTC, which held that the Commission

cannot obtain monetary relief through Section 13(b). 141 S. Ct. 1341 (2021).

In order to preserve the opportunity for monetary relief for the small business consumers

harmed by Respondents’ years of unfair and deceptive practices, FTC staff sought and filed the

administrative complaint in this action, which is identical in substance to the Section 13(b)

complaint. In August 2021, within days of filing the administrative complaint, FTC staff filed

two motions:



a motion before the district court to stay or voluntarily dismiss without prejudice the

Section 13(b) action in order that this administrative action—a predicate to monetary

relief under Section 19(a)(2), 15 U.S.C. § 57b(a)(2)—proceed without delay; and



a motion before the Commission seeking to stay this administrative proceeding pending

the district court’s resolution of the motion to stay or voluntarily dismiss.

The Commission promptly granted the motion to stay the administrative proceeding,

which was unopposed. Order Staying Administrative Proceeding, Doc. 603387 (Aug. 25, 2021).

In so doing, the Commission found that the interest in avoiding unnecessary burden and expense

from duplicative actions provided good cause to stay this proceeding while the district court

resolved the motion to stay or dismiss the Section 13(b) action. Id.

After full briefing and a hearing on the motion to stay or dismiss the Section 13(b) action,

ayliwhich Respondents “staunchly” opposed, the district court denied the FTC’s motion, instead

deciding to itself adjudicate the merits, after which the FTC—if successful—could obtain a

cease-and-desist order and then return to the district court for monetary relief pursuant to

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Section 19(a)(2). Order at 21, Fleetcor Techs., No. 19-5727 (N.D. Ga. Feb. 7, 2022). In

successfully arguing that the district court should itself determine liability, Respondents

expressly—and correctly—represented that there are no different or additional issues that require

discovery or adjudication in this administrative action, and that Respondents will be conclusively

bound in this action by the district court’s liability determinations. See infra Section II.A.

In August 2022, the district court granted summary judgment in favor of the FTC

on all claims. Fleetcor Techs., 620 F. Supp. 3d 1268. In a comprehensive, 32,000-word opinion,

the Court held that (1) the challenged marketing representations were materially misleading;

(2) FleetCor never procured customers’ consent for the seven challenged fees it imposed on

consumers; and (3) FleetCor systematically charged late fees for on-time payments and in

circumstances where it had blocked consumers from making timely payment. Id. at 1289–1339.

The Court also held that FleetCor’s CEO, Ronald Clarke, was liable for the company’s conduct.

Id. at 1339–43.

In addition, the Court held that permanent injunctive relief was “imperative to protect the

public interest” given (1) the “mountain of evidence” that Defendants’ violations “were farreaching” and “ingrained in the fabric of the company for years”; (2) “unrefuted evidence . . .

that the conduct was intentional”; (3) Defendants’ refusal to acknowledge the wrongfulness of

their conduct; (4) evidence of ongoing violations of the FTC Act; and (5) the serious harm to

consumers that would result should Defendants’ violations continue. Id. at 1343–46. To

determine the contours of a permanent injunction, the district court solicited multiple rounds of

briefing and held a hearing. In June 2023, approximately ten months after the grant of summary

judgment, the district court entered an Order for Permanent Injunction and Other Relief against

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both Respondents and closed the case. See Order for Permanent Injunction and Other Relief,

Fleetcor Techs., No. 19-5727 (N.D. Ga. June 8, 2023).

II.

This Action Should Proceed Immediately to Dispositive Motion Practice

The Commission is committed to resolving Part 3 proceedings expeditiously; delay is the

exception and permitted only upon a showing of good cause.3 Now that the district court has

determined Respondents’ liability on all counts, this action should be resolved through

dispositive motion practice because all necessary issues have been conclusively determined in

the district court and these determinations are ripe for preclusive use. Moreover, failing to

proceed immediately to dispositive motion practice would unjustly impose additional delay

before Respondents’ long-suffering customers can receive the monetary relief to which they are

entitled.

All Necessary Issues Have Been Conclusively Determined in the

District Court and These Determinations Are Ripe for Preclusive Use

It is entirely appropriate for this matter to move directly to dispositive motion practice

without discovery or other pretrial proceedings because, as Respondents acknowledged in

successfully persuading the district court to deny the FTC’s motion to stay the Section 13(b)

action, there are no different or additional issues for adjudication in this action beyond those

addressed by the district court, and Respondents are bound here by the district court’s liability

determinations. Among other statements, Respondents represented to the district court that, with

See 16 C.F.R. § 3.1 (“[T]he Commission’s policy is to conduct [Part 3] proceedings

expeditiously.”); id. § 3.41(b) (“Hearings shall proceed with all reasonable expedition . . . .”);

id. § 3.41(f) (“The pendency of a collateral federal court action that relates to the administrative

adjudication shall not stay the proceeding” unless “the Commission for good cause, so directs”).

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what Respondents viewed as one possible exception,4 there is “no daylight between what Your

Honor would decide in the court and what [the FTC] would need to prove there [in the

administrative action].” Att. A, Transcript of Oral Argument (“Transcript”) at 41–42, Fleetcor

Techs., Inc., No. 19-5727 (N.D. Ga. Jan. 7, 2022). Respondents further represented to the district

court that, for “things that are litigated in front of Your Honor we would have issue preclusion.

So anything that Your Honor decides against us, that would bind us.” Id. at 41.

Respondents’ representations to the district court were a correct statement of law. Under

the doctrine of issue preclusion, “once a court has decided an issue of fact or law necessary to its

judgment, that decision is conclusive in a subsequent suit” involving a party to the prior

litigation. United States v. Mendoza, 464 U.S. 154, 158 (1984). Preclusion is appropriate if

(1) the issues at stake are “identical” to those in the prior litigation; (2) the issue was “actually

litigated” in the prior action; (3) the issue was a “critical and necessary part” of the prior

judgment; and (4) the parties are the same or in privity with each other. See, e.g., Terrell v.

DeConna, 877 F.2d 1267, 1270 (5th Cir. 1989); Baloco v. Drummond Co., 767 F.3d 1229, 1251

(11th Cir. 2014). Because there is “no daylight” between the determinations in the district court

and those necessary for a cease-and-desist order—i.e., the same issues were actually and

As the sole potential difference between the federal court and administrative actions,

Respondents claimed, incorrectly, that in this proceeding Complaint Counsel would need to

overcome a “scienter defense.” Att. A, Transcript at 41–42. There is, however, no scienter

defense or requirement in determining a violation of Section 5. E.g., Orkin Exterminating Co. v.

FTC, 849 F.2d 1354, 1368 (11th Cir. 1988).

Respondents’ confused statements about a “scienter defense” appear to be references to the

“dishonest or fraudulent” standard of Section 19(a)(2). See Att. A, Transcript at 41–42, 65. The

text of the provision, however, commits to the district court in which a Section 19(a)(2) action is

pending, rather than to an administrative adjudication, the determination whether a reasonable

person would have known the acts or practices at issue were dishonest or fraudulent. 15 U.S.C.

§ 57b(a)(2). As such, the “dishonest or fraudulent” standard of Section 19(a)(2) does not

represent an additional issue for this proceeding or the Commission.

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necessarily litigated between the same parties—Respondents will indeed be bound here by the

district court’s determinations.

Respondents further assured the district court—again, accurately—that if the court

determined liability, this “would then make the cease and desist proceedings very efficient

because . . . anything that needs to be decided that you already decided, that would be done. You

resolved it conclusively.” Att. A, Transcript at 41–42; see also Att. B, Respondents’ Letter to

Hon. Amy Totenberg at 2 (Jan. 12, 2022) (“If the FTC prevails here, it would streamline (if not

entirely resolve) the administrative proceeding, because any issues decided by this Court would

be conclusive.”). Accordingly, any proceedings and deadlines in this action other than those

directly related to dispositive motion filings should remain stayed: discovery and evidentiary

proceedings would serve no purpose other than to inflict on the parties the burden and expense of

duplicative litigation that the stay was initiated to prevent. See Att. A, Transcript at 38

(Respondents’ representations that there are no “meaningful differences between the [federal

court] injunction standard and the cease and desist order standard” and that “we see no daylight”

on the “type of evidence that would be presented and the decision of the Court or the FTC”).5

In addition, the determinations of the district court are ripe for preclusive use. Although

Respondents are likely to appeal the district court’s entry of judgment against them, it is well-

Complaint Counsel agreed with Respondents that the district court and the Commission would

apply identical legal standards to determine liability. Att. A, Transcript at 44 (“In terms of

liability, the same standard, correct.”). Complaint Counsel noted that there may be “a little bit of

daylight” between the factors that the district court and the Commission would respectively

consider in determining the scope of injunctive relief, id. at 29–32, 44–45, while, as noted in the

accompanying text, Respondents saw “no daylight.” In any event, Complaint Counsel agreed

that the same factual determinations would be sufficient to decide injunctive relief in either

venue. Id. at 30–31, 47 (noting that the summary judgment papers filed by the parties in the

district court could be re-used in the cease-and-desist proceeding).

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established that a possible or pending appeal does not diminish the preclusive effect of a district

court’s determinations. See, e.g., Jaffree v. Wallace, 837 F.2d 1461, 1467 (11th Cir. 1988) (“The

established rule in the federal courts is that a final judgment retains all of its res judicata

consequences pending decision of the appeal.”); Comer v. Murphy Oil USA, Inc., 718 F.3d 460,

467 (5th Cir. 2013) (“[a] case pending appeal is res judicata and entitled to full faith and credit

unless and until reversed on appeal”); Ross ex rel. Ross v. Bd. of Educ. of Twp. High Sch. Dist.

211, 486 F.3d 279, 284 (7th Cir. 2007) (“the fact that an appeal was lodged does not defeat the

finality of the judgment” for preclusion purposes); Hawkins v. Risley, 984 F.2d 321, 324 (9th Cir.

1993) (“the preclusive effects of a lower court judgment cannot be suspended simply by taking

an appeal that remains undecided”); Erebia v. Chrysler Plastic Products Corp., 891 F.2d 1212,

1215 n. 1 (6th Cir. 1989) (“a final judgment retains all of its preclusive effect pending appeal”).

Failing to Proceed Immediately to Dispositive Motion Practice Would

Unjustly Delay Monetary Relief

Significantly, any additional delay before proceeding to dispositive motion practice

would be manifestly unjust to the consumers injured at Respondents’ hands. The district court’s

summary judgment decision reflects substantial and ongoing injury to consumers. Fleetcor

Techs., 620 F. Supp. 3d at 1314–15, 1319 (noting FTC estimates of equitable monetary injury to

consumers from unlawful charges of more than $530 million as of December 2019); id. at 1345–

46 (unlawful FleetCor practices are ongoing). The affected consumers are not large enterprises

that can easily bear an indefinite wait for redress, but overwhelmingly are small, lesssophisticated businesses with limited resources. Id. at 1280, 1334, 1346 (citing FleetCor

documents and studies describing Respondents’ customers as “small business owners/coowners” who are “not business people,” are “short on time due to wearing multiple ‘hats,’” and

are often “fairly unsophisticated”). There is no good cause to further extend their suffering by

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failing to proceed immediately to dispositive motion practice.

III.

Conclusion

For the foregoing reasons, Complaint Counsel respectfully request that the Commission

enter the proposed order to partially lift the stay in this Part 3 action.

June 23, 2023

Respectfully submitted,

/s/ Daniel O. Hanks

Daniel O. Hanks

James I. Doty

Bureau of Consumer Protection

600 Pennsylvania Avenue NW

Mailstop CC-10232

Washington, DC 20580

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Attachment A

Case 1:19-cv-05727-AT Document 194 Filed 02/18/22 Page 1 of 71

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The following is the PDF of an official transcript.

Official transcripts may only be filed in CM/ECF by the

Official Court Reporter and will be restricted in CM/ECF for a

period of 90 days. You may cite to a portion of the attached

transcript by the docket entry number, referencing page and

line number, only after the Court Reporter has filed the

official transcript; however, you are prohibited from attaching

a full or partial transcript to any document filed with the

Court.

UNITED STATES DISTRICT COURT

OFFICIAL CERTIFIED TRANSCRIPT

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

FEDERAL TRADE COMMISSION,

PLAINTIFF,

vs.

FLEETCOR TECHNOLOGIES, INC.,

AND RONALD CLARKE,

DEFENDANTS.

DOCKET NUMBER

1:19-CV-5727-AT

TRANSCRIPT OF ORAL ARGUMENT VIA ZOOM PROCEEDINGS

BEFORE THE HONORABLE AMY TOTENBERG

UNITED STATES SENIOR DISTRICT JUDGE

JANUARY 7, 2022

10:28 A.M.

MECHANICAL STENOGRAPHY OF PROCEEDINGS AND COMPUTER-AIDED

TRANSCRIPT PRODUCED BY:

OFFICIAL COURT REPORTER:

SHANNON R. WELCH, RMR, CRR

2394 UNITED STATES COURTHOUSE

75 TED TURNER DRIVE, SOUTHWEST

ATLANTA, GEORGIA 30303

(404) 215-1383

UNITED STATES DISTRICT COURT

OFFICIAL CERTIFIED TRANSCRIPT

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A P P E A R A N C E S

O F

C O U N S E L

FOR THE PLAINTIFF:

BRITTANY K. FRASSETTO

GREGORY J. MADDEN

MICHAEL A. BOUTROS

LISA ROTHFARB

MICHAEL E. TANKERSLEY

FEDERAL TRADE COMMISSION

FOR THE DEFENDANT FLEETCOR TECHNOLOGIES, INC.:

BENJAMIN M. MUNDEL

DANIEL J. HAY

MARK T. HOPSON

SIDLEY AUSTIN LLP

JESSICA A. CALEB

CAPLAN COBB

FOR THE DEFENDANT RONALD CLARKE:

LEVI M. DOWNING

KELLEY DRYE COLLIER SHANNON

UNITED STATES DISTRICT COURT

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Is everyone connected in?

P R O C E E D I N G S

PUBLIC

(Atlanta, Fulton County, Georgia; January 7, 2022.)

THE COURT:

All right.

see Mr. Madden just connected.

MR. MADDEN:

Yes, Your Honor.

THE COURT:

No.

I apologize.

No need to apologize.

on time.

present that you-all had organized to be here.

I hope you-all are well.

You are

I just was trying to make sure that everyone was

We are here to have oral

argument and discuss the present pending motion to dismiss from

the FTC and the summary judgment motion -- related summary

judgment motions and Daubert motion.

But my greatest concern obviously is the motion --

the motion to dismiss and request that it be done on a

voluntary basis and the response of the defendant to this.

As I indicated, I allocated a substantial amount of

time for this.

I have some thoughts about how we might

proceed.

much time you would like to have to make any presentation you

so desire, first of all.

MS. FRASSETTO:

But I would like to hear from you first as to how

Yes, Your Honor.

Again, thank you

for accommodating our request to hold this hearing virtually

today.

The FTC is prepared to discuss specifically our

motion to stay or alternatively dismiss without prejudice.

UNITED STATES DISTRICT COURT

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And

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I would be happy to give some opening remarks on that, if you

would like.

THE COURT:

Okay.

MR. MUNDEL:

Thank you, Your Honor.

Mundel on behalf of FleetCor.

the motions that Your Honor mentioned today.

proceed in any particular order and timing limits, Your Honor.

THE COURT:

And defense counsel?

This is Ben

We're prepared to discuss all of

All right.

We're happy to

Well, I think first and

foremost I would like to spend time on the motion to dismiss

filed by the FTC.

motion for summary judgment.

helpful to me at this juncture.

I would like to spend less time on the

I don't know that it will be as

But there are issues that -- that might be of some

import.

consider is also what are the -- you know, really looking at

the motion to dismiss, as well as the fact that the Government

also has a pending motion for an injunction -- I mean, has

provided a delineated request for injunctive relief.

And one of the things I would like everyone to

What is the possibility -- because it is not one that

is really fully explored in anyone's position so far that -I'm sorry.

for a moment.

(There was a brief pause in the proceedings.)

I'm going to have to close the door here

THE COURT:

the house.

I am out of practice with using Zoom from

But so many people have become ill or requested

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modifications in the way of the proceedings that here I am

again doing it.

All right.

In any event, what I'm interested in is

partially if the -- also if the FTC -- I ultimately conclude

that the proceedings should continue at least as to injunctive

relief and in this -- this forum, does that in any way preclude

the FTC from basically either continuing with its Section 19

claim possibly in the commission proceeding or just simply

staying -- my allowing them to stay that -- the complaint --

continue to stay their -- that proceeding pending the

conclusion of the injunctive relief claim.

And that is a -- and that notion would be essentially

not that I would hold open this proceeding and then stay it

later -- for later on intervention.

could -- that might not be a reasonable way of proceeding.

might be that this matter comes to a close.

decided at some point it was going to come back into federal

court, it could obviously always mark this as a related case.

But this case would be closed.

I mean, obviously it

And if the FTC

I'm just sort of throwing that out so that you-all

can think about it.

And there are other -- lots of other

related issues I have.

option that was not discussed in your briefs.

But that was one that was just an

So -- all right.

I've lost -- let me see.

Ms. Frassetto, do you want to proceed?

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It is your

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motion.

MS. FRASSETTO:

Yes.

I will proceed, Your Honor.

I would like to briefly summarize the key issues

before Your Honor today.

First, I would like to discuss the

FTC's sole reason for its request for a stay or dismissal

without prejudice.

giving money back to injured consumers in the wake of the

Supreme Court's decision in AMG.

And that is to preserve the possibility of

Second, I will discuss why all the equities weigh in

favor of granting the FTC's request, why there is no prejudice

to defendant, and why the FTC's proposed course of action is

fully supported by Eleventh Circuit precedence.

First, we are here today because the FTC is seeking

to reserve the possibility of getting money back to injured

small business consumers in the middle of the pandemic and post

AMG.

The extensive evidence presented in this case shows

that these consumers lost more than $550 million after

defendants lured them in with false advertisements and then

charged them hidden fees.

overturned nearly 40 years of circuit court precedent, means

that the FTC can no longer recover a single penny of that money

for consumers in this fashion.

But the AMG decision, which

The Supreme Court has made clear that the FTC's only

viable path to monetary relief for consumers in cases like this

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is to first go through administrative litigation.

As a result,

the commission authorized the filing of an administrative

complaint against defendants in August of last year.

FTC is trying to do here is respect the AMG decision and move

forward as seamlessly as possible to protect injured consumers.

All the

Our proposed path would preserve the possibility of

getting money back to consumers if defendants are found liable

rather than expending this Court's resources deciding liability

but then leaving consumers with nothing.

Second, the issue before Your Honor today is what to

do about this action in a post AMG world where the only path

forward for getting money to injured consumers is an

administrative proceeding.

We are requesting a stay -(There was a brief pause in the proceedings.)

MS. FRASSETTO:

So, again, we are seeking a stay or

alternatively dismissal without prejudice.

proceeding in administrative litigation without simultaneously

litigating in federal court.

are amply supported by Eleventh Circuit precedent.

Each would allow

And both the stay and dismissal

I will first discuss the stay and then the dismissal

without prejudice.

So with respect to the stay, our sole

driving force here is preserving the possibility of monetary

relief for injured consumers.

possibility of obtaining a greater amount of relief for those

A stay would preserve the

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consumers.

be limited to three years from the date the administrative

action was filed in August 2021, instead of three years from

the date this action was filed in December 2019.

Without a stay, consumers' relief would potentially

THE COURT:

Let me ask you -- let me interrupt you

there.

So have you assessed what the scope of the impact

will be?

right?

I mean, you're talking about a two-year difference;

MS. FRASSETTO:

numbers, if that would be useful.

Yes, Your Honor.

THE COURT:

much it truncates the remedy.

Yes.

MS. FRASSETTO:

Sure.

So if it was three years from

August of 2021, it would be less than half.

best about 250 million.

THE COURT:

MS. FRASSETTO:

I can provide rough

I mean, I would like to know how

It would be at

Okay.

And I would note that the three years

from December 2019 would still be about 425 million.

is still less than we were seeking because of this three-year

statute of limitations.

So that

As we noted in the brief, we would potentially argue

for equitable tolling.

premature here.

We think all of that is somewhat

But just so you have the numbers.

THE COURT:

Okay.

Go ahead.

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MS. FRASSETTO:

Okay.

So practically speaking, the

stay would work as follows.

If defendants are held liable in

the administrative proceedings, we would then return to court

on a narrower issue, the amount of money that should go back to

victims injured by defendants' practices.

All of the traditional stay factors, the interest of

the plaintiff, defendants, courts, nonparties, and the public,

weigh in favor of a stay.

notably injured consumers would benefit by having the case

proceed in a forum that potentially allows recovery of more

than $550 in relief.

businesses injured by defendants' conduct at a time when small

businesses are facing pandemic hardships as well.

The FTC, the public, and most

These funds would primarily go to small

Administrative litigation would also free up Your

Honor's docket for the time being.

As for any follow-on

action, the issues would be narrowed for this Court.

Honor would not need to decide liability, only monetary relief.

And defendants have made no credible argument that a stay would

harm their interest.

Your

Further, the proposed stay is moderate and analogous

to the Tomco Equipment case cited in our opening brief also out

of this district.

patent reexamination, a process that could take over a year.

The Court felt that the reexamination would simplify and narrow

the issues before it.

There, the Court granted a stay pending a

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Here, the administrative proceeding can conclude in

less than a year and would resolve Section 5 liability and

injunctive relief.

left for this Court to decide.

would only have to decide issues related to monetary relief.

In turning now to dismissal without prejudice, as I

If the FTC lost, there would be nothing

If the FTC won, Your Honor

noted before, while the stay would potentially preserve a

larger amount of what was lost for struggling small businesses,

the FTC is moving in the alternative for dismissal without

prejudice.

McCants v. Ford Motor Co. set forth the Eleventh Circuit

standard very clearly.

And there Potenberg v. Boston Scientific and

In Potenberg, the court held -- and I quote -- in

most cases, a voluntary dismissal should be granted unless the

court will suffer clear legal prejudice other than the mere

prospect of a subsequent lawsuit as a result.

And in McCants, the court granted voluntary dismissal

without prejudice.

likely time-barred where the plaintiff had originally filed and

sought dismissal and not time-barred where the plaintiffs

intended to refile.

And notably in that case, the suit was

McCants is particularly instructive in refuting

defendants' claim here that losing a defense to monetary relief

is clear legal prejudice.

defense is not clear legal prejudice, surely losing only one

If losing its statute of limitations

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defense also is not.

And tellingly defendants did not cite a

single in-circuit decision to support their claim that losing

such a defense was a clear legal prejudice.

Likewise, it is not clear legal prejudice to move to

administrative proceedings.

Any argument that such proceedings

violate due process is without legal support and was

specifically rejected by the Supreme Court in FTC v. Cement

Institute and Withrow v. Larkin, in which the court

specifically said -- and I quote -- the combination of

investigative and adjudicative functions does not without more

constitute a due process violation.

Further, none of the parties' efforts to date will be

wasted.

arguments in its motion to the commission.

not seek additional discovery assuming defendants do the same.

The FTC will be making the same summary judgment

And the FTC will

The facts here are analogous to those in Daglis v.

Coca-Cola where Your Honor granted dismissal without prejudice

after 21 months of discovery and after defendants filed a

summary judgment motion.

parties could reuse discovery from that action in any future

proceeding.

Your Honor further noted that the

Finally, I want to close by addressing defendants'

bad faith allegations, which personally upset me because the

FTC has been civil and professional throughout these

proceedings under unprecedented legal change and challenges

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during the pandemic, which we are still obviously facing today.

The FTC has acted in good faith throughout these

proceedings, including in the wake of the Supreme Court's AMG

decision.

hour gotcha game to us.

We are here for consumers.

possibility of getting money back to small business consumers

who faced dire circumstances during the pandemic.

Proceeding administratively is not some eleventh

We are not doing this for ourselves.

We're doing this to preserve the

We have been clearly transparent with the Court and

defendants that obtaining monetary relief for these consumers

is the sole driving factor in our decision.

And I want to thank Your Honor again for your time

today, and I look forward to answering any questions you may

have.

Thank you.

THE COURT:

I have a number of questions.

But I

think it would be more useful to hear from defense counsel and

then proceed to ask the questions.

MS. FRASSETTO:

MR. MUNDEL:

Mundel on behalf of FleetCor.

Yes, Your Honor.

Thank you, Your Honor.

This is Ben

I want to start by answering the question that you

have.

You asked whether the FTC can litigate liability and the

injunction in federal court and then go back to an admin

proceeding in Section 19 to get the monetary relief if it

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prevails.

could not do that.

can see at this time why the FTC, if it prevails in front of

Your Honor, could not do that.

And Ms. Frassetto never told the Court that the FTC

And, in fact, there is no reason that we

So that is why it is clear to us from what the FTC is

doing is they are trying avoid this Court from determining

liability.

that they filed in front of Your Honor, instead of having an

independent Article III court decide them.

the only reason for this motion is because the five

commissioners at the FTC want to decide the very motions that

they have filed in this Court.

independent neutral judge to decide it, they want to decide

their own motion.

They are trying to take the summary judgment motion

The only reason --

Instead of allowing an

And there are three things beyond that that I would

like the Court to keep in mind up front.

this is a dispositive motion.

Court permits the commissioners to decide their own summary

judgment motion it would be dispositive.

The first is that

It is dispositive because if the

Since 1995, the FTC has prevailed in all of the cases

they filed directly in its own forum.

But this is not just any

ordinary case.

for the first time here, the FTC has actually already filed

summary judgment motions in front of the Court.

motions, it has said it should prevail as a matter of law.

Because unlike every single one of those cases,

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And Ms. Frassetto confirmed that today that they

still believe they should prevail as a matter of law.

And in

their motion to dismiss and stay, they told the Court that they

demonstrated in its summary judgment papers that FleetCor

violated the law.

commissioners want to decide their very own summary judgment

motion where they have already prejudged that FleetCor violated

the law.

So it is dispositive because the FTC

The second thing we want the Court to keep in mind is

that this is completely unprecedented.

The FTC cannot cite any

precedence for the proposition that it may take a case that it

filed in federal court, litigate it all the way from summary

judgment, and then dismiss it in favor of its own

administrative forum.

have never done that before.

done it before either.

In the 108-year history of the FTC, they

And no federal agency has ever

And certainly AMG was an intervening Supreme Court

case.

appeals cases have decided issues on antitrust and consumer

protection and issues that other agencies dealt with during the

pendency of the litigation and never before has any federal

agency tried to do what the FTC is doing here.

But this is not new.

Supreme court cases and court of

The third thing we would ask the Court to keep in

mind is that the burden of proof remains with the FTC.

is, Rule 41 prohibits the Federal Trade Commission or any

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plaintiff from voluntarily dismissing a suit at this late stage

without an order of the court.

an order from the court is to protect the interests of

defendants and protect the interests of defendants just like

FleetCor here today.

And the reason Rule 41 requires

When it comes to the legal standard, the parties

largely agree that the motion to dismiss should be denied if it

will cause a legal prejudice or it was done in bad faith.

agree on the legal standard, but the burden of proof is on them

to disprove that there was any legal prejudice or any bad

faith.

And they haven't done that here, Your Honor.

THE COURT:

I don't know that it is their burden to

show there is no bad faith.

I think that is always your

burden -- the opposing party's burden to show bad faith and

which is a very high standard when you are dealing with an

agency in terms of its decision-making as properly argued by

the FTC.

these contexts where it is -- is meaningful argument.

And I don't know that sort of mere supposition in

MR. MUNDEL:

Certainly, Your Honor.

To be clear, bad

faith is not required.

on the basis of legal prejudice standing alone.

identified bad faith beyond just supposition.

favorable example of that, Your Honor, is the case law from the

Eleventh Circuit -- and the FTC admits this on Page 9 of their

brief -- is that filing a motion to dismiss to avoid an adverse

We believe the motion should be denied

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But we have

And the most

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summary judgment motion is bad faith.

case from the Eleventh Circuit.

confirmed that.

is doing here.

They agree.

That is in the McBride

And Page 9 of their briefing

Yet that is exactly what the FTC

We filed on behalf of FleetCor and Mr. Clarke a

motion for summary judgment on restitution.

get restitution in this court based upon the plain text of the

statute and the Supreme Court's decision in AMG.

further concedes that we must prevail on that motion based on

the Supreme Court's finding decision in AMG.

precisely -- avoiding that adverse decision is precisely --

precisely what the FTC is doing.

And the FTC cannot

The FTC

Yet that is

In fact, what Ms. Frassetto said was the sole reason

that the FTC filed this motion.

So their own concessions

confirmed under Eleventh Circuit precedent that they are trying

to avoid an adverse summary judgment ruling.

constitutes bad faith for the purpose of Rule 41.

And that

But there are other reasons for bad faith as well.

But before I get to those, I wanted to talk briefly if I may

about the legal prejudice because I think that is really the

core of why this motion should be denied.

And the principal legal prejudice that FleetCor and

Mr. Clarke will face if this motion is granted is that it would

deprive them of a complete and total defense to damages.

that is the quintessential forum of legal prejudice.

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The FTC

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does not dispute otherwise.

Using a defense to a cause of

action, using a defense to damages is the core legal prejudice.

Yet again that is exactly what this motion does.

If this case proceeds in federal court, FleetCor has

the absolute and complete defense to monetary relief.

If they

prevail in their motion and are able to litigate in the

administrative forum, it is no longer a complete and total

defense.

And precisely in the Philibert v. Ethicon case where the court

found that using just a defense to punitive damages was a loss

of a legal right.

That is precisely the definition of legal prejudice.

THE COURT:

I'm sorry.

MR. MUNDEL:

Yes.

The Court in Philibert v. Ethicon determined that the

I didn't understand your last

sentence.

I'm sorry, Your Honor.

loss of a defense to punitive damages -- punitive damages

constituted legal prejudice.

case because it is not just the loss of the defense to a

particular type of extreme damages, punitive damages.

loss of defense to total damages.

clear legal prejudice.

Here, we have a much stronger

It is a

So under that case, there is

The only argument to the contrary from the FTC is

that there are cases that talk about the loss of the statute of

limitations, but that is limited to the statute of limitations

not being legal prejudice.

There is no court that has ever

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said the loss of a defense to damages does not constitute legal

prejudice because surely it is in the heartland of what is

prejudicial to a defendant.

But in addition to the loss of legal defense, the

defendants would also lose the right to a neutral

decision-maker.

neutral decision-maker is an essential guarantee of due

process.

And this is important because the right to a

But to be clear, we are not arguing that the FTC

administrative structure violates due process.

arguing that.

should not reach that question here because it is not

presented.

very specific facts of this case -- of this case where the FTC

has made statements prejudging the summary judgment motion.

Whether allowing them to take their own motion and decide them

is not whether that violates due process, whether it violates

Rule 41's prohibition on causing legal prejudice when granting

a motion for voluntary dismissal at this late stage.

We're not

What we are arguing -- and the Court, frankly,

The only thing that is presented here is in the

The factual scenario is different from what they are

asserting from the legal question is very different.

the context of this case where the commission has already taken

the position that it should prevail as a matter of law and then

wants to decide those very same issues that it filed in this

case already and are fully briefed and submitted for

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decision -- when it has done that already, that shows that

FleetCor, Mr. Clarke will not have a neutral decision-maker.

And that is legal prejudice that justifies denying the motion.

And no court has ever granted a voluntary -- motion

for voluntary dismissal when it would move from a neutral

decision-maker to one that has prejudged the merits of the

case.

federal court to another federal court or a federal court to a

state court where there are neutral decision-makers and there

is not prejudgment.

THE COURT:

And in every case the FTC cites it is moving from a

I don't know why you are saying that I

should assume that the -- for instance, the administrative law

judge is not going to be neutral.

MR. MUNDEL:

You absolutely should not and need not

assume that, Your Honor.

The FTC did not put this in their

brief.

Commission and what Ms. Frassetto and her colleagues told us,

the administrative law judge will not decide the summary

judgment papers.

The commission has the right to decide those in the first

instance.

determination on summary judgment.

has affirmed in this Court repeatedly that FleetCor has in

their view -- and their view is incorrect and not supported by

the evidence -- but has violated the law and should lose

But under the rules of procedure of the Federal Trade

It will be decided by the commission itself.

So it is the commission that would be making the

It is the commission that

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summary judgment as a matter of law.

And they have issued press releases that have said

that FleetCor has deceived small business customers.

So there

is no need to make an assumption about the ALJ at all because

we're only focused on the commission.

commission, we're only asking the Court to not make an

assumption into their subjective intent but into the statements

that they have made in press releases and repeated filings in

this court.

And even as to the

So that is why it is clear that there is a loss of a

neutral decision-maker.

that is the only legal reason to move this case from federal

court to the administrative proceedings because we never heard

from the FTC and we still haven't heard any reason why they

can't proceed and litigate liability and injunction in this

court.

proceedings to try to get monetary relief.

And, in fact, it appears to us that

And if they prevail, we can go to the follow-on

THE COURT:

Tell me about what that would look like

also in terms of the statute of limitations, which was really

part of my question earlier.

If they proceed here with their claims for injunctive

relief and prevail, you are saying they can then do what?

MR. MUNDEL:

They would have -- at least have the

option -- it appears to me they would have the option if they

prevail going to an administrative proceeding with the benefit,

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by the way, Your Honor, of having a judgment from this Court on

the issue of liability.

They would have the benefit of that.

They could go to the administrative proceeding, do

what needs to be done there, and then if they need to and they

are able to proceed with Section 19(b) in federal court and

just do exactly as they are doing here except the key

difference is they would not be taking the case out of the

hands of a federal court judge that has held the case for two

years, litigated it all the way through summary judgment,

causing extreme burden to the defense.

So that is how they would do it.

And as far as the

statute of limitations in relation to that, I agree with

Ms. Frassetto on this.

that issue.

grants a stay, not only would that be prejudicial, it actually

increases the prejudice because it gives them an additional

argument to relate that.

MS. FRASSETTO:

THE COURT:

But it is absolutely the case that if the Court

Your Honor, if I may respond.

I want to make sure that counsel is

through, and then you can respond to all of this.

MR. MUNDEL:

I think it is premature to determine

Okay?

I'll make a few more points, Your Honor.

First on the prejudice.

The last point of prejudice I would like to hit

briefly is the cost and expense because this is an important

point.

Courts have been clear that ordinarily the cost of

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litigation is just practical prejudice.

prejudice.

It is not legal

But when the cost is so great, when the cost is so

high, when it is so significant, it reaches the point of legal

prejudice.

Stephens v. Georgia DOT where it affirmed the denial of a

motion to dismiss in a case that is either on all fours with

this one but it appears that the prejudice to the defendant was

less substantial.

And that is what the Eleventh Circuit explained in

That case had been pending for two years.

THE COURT:

Tell me the citation to the Stephens

MR. MUNDEL:

Yes, Your Honor.

Eleventh Circuit 2005.

case.

134 F. App'x. 320,

THE COURT:

All right.

MR. MUNDEL:

And that court found a denial of the

motion to voluntary dismiss, quote, because during the two-year

period since the filing of the complaint, numerous motions had

been filed, expensive discovery had been produced, and motions

for summary judgment were filed.

In our case, two years, there was the voluminous

asymmetrical discovery at great expense.

Honor to take more depositions than it was allowed.

asked Your Honor to have more custodians than normally is

permitted.

The FTC asked Your

The FTC

The defendants produced more than a million pages of

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documents, more than 6000 gigabytes of data, all at a cost of

more than $10 million.

extreme in federal court.

that high under Stephens v. Georgia it absolutely reaches the

point of legal prejudice.

(Zoom interference) case -THE COURT:

So this case was litigated to the

And when the expense and burden gets

And counsel for the FTC cites the

Is that case -- it was a private -- an

individual proceeding?

that right?

It was an employment proceeding; isn't

MR. MUNDEL:

That's correct, Your Honor.

THE COURT:

And one of the issues here -- yes, there

is the money.

But there is also a vast public interest that is

involved in this case.

It is not just your -- not just the

defendants' interest.

But it is not like the FTC is just

proceeding for its own private benefit.

MR. MUNDEL:

That's absolutely true, Your Honor.

I'll say three things.

The first is:

And

That is not a factor under Rule 41.

But there is a public interest here.

summary judgment briefing, we think it is very clear that the

FTC's statement that they are entitled to $500 million is

untrue.

If the Court reviews the

They have no evidentiary basis to support it.

We believe that is the reason why they want to leave

this court.

Because the discovery record in this case shows

that the FTC's own expert -- their own expert admitted he did

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not have any evidence that FleetCor customers were deceived.

This is a deception case.

restitution.

Their 30(b)(6) witness said they have no evidence that even

ten percent of FleetCor customers saw deceptive advertising.

There is no evidence that more than ten percent of FleetCor

customers thought those advertisements were material or relied

upon them.

30(b)(6) witness that any fees were charged by FleetCor without

prior notice.

They want $500 million in

Their expert says no evidence to support it.

There is no evidence according to the FTC's own

So the evidence in this case shows not only that

there is no liability but there is absolutely no basis for the

demand for $500 million in restitution.

comes from is that the (Zoom interference) at the FTC simply

added up the number of fees that FleetCor charged during a

particular time period on a particular card program.

Where that number

It is a number that would not withstand any scrutiny

of a neutral decision-maker.

So the public interest here is

not in reserving the right for the FTC to seek an amount of

damages that is not supported by the evidence.

interest is in putting a baseless lawsuit behind this company

so that its employees and shareholders can move on and create

value for their customers so their customers don't have

increased cost and less services because of the burden and

expense of this litigation.

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But the public

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And we believe the evidence strongly supports that.

But if Your Honor is still concerned about potential relief for

customers if they were injured, there are many avenues for

relief.

private plaintiff class actions.

general.

other forums.

The FTC is not the only avenue for relief.

There are

There are state attorneys

There is the Department of Justice.

There are many

And the FTC apparently has a way they can get relief

through this proceeding if they litigate the case in front of

Your Honor to the merits.

THE COURT:

Going back -- I mean, your argument is,

among other things, that they can -- they have their case

pending -- their administrative proceeding pending at this

point in the commission.

of the Section 5 part of the case, they could -- I should stay

that -- basically close my case and allow it to be -- then to

come back if they have satisfied whatever they need to do under

the administrative proceedings?

MR. MUNDEL:

And if I needed to, at the conclusion

You are saying -- just to make sure I

understood the question -- litigate in the court first for

liability and the injunction?

the case for the administrative proceedings to continue?

that your question?

THE COURT:

Yes.

MR. MUNDEL:

Your Honor, I think that would be one

And if the FTC prevails, stay

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option.

The truth is I don't think it is a -- in the event the

FTC prevails in front of Your Honor, our preference would be to

close the case because a stay is not actually the right vehicle

because the FTC never intends to litigate the case they have

brought further.

complaint, different cause of action, different legal standard,

different legal theories, different facts.

They would come back and bring a new

So I'm not -- so our view is the better course would

be to close the case; let the FTC go to the administrative

proceeding; let them file a new 19(b) action.

make the same tolling and equitable arguments they can.

just under a new case number.

They could still

It is

I think they can still do that.

We would oppose that they could do it.

Honor, if your preference is to do that, I think our view is

that would be better than the alternative.

better than allowing -- dismissing the case now and allowing it

to go directly to the administrative proceeding.

THE COURT:

Thank you.

the response of FTC counsel.

MS. FRASSETTO:

discuss.

questions.

But, Your

That would be

All right.

Let me hear now

Sure, Your Honor.

There is a lot to

But I'll be brief and am happy to answer any

You know, again, I just want to start with it really

does upset me that the defendants just simply don't believe the

reason that we are doing this.

You know, there is no evidence

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we have acted in bad faith.

commissioners won't come in with an open mind, which is, quite

frankly, the standard.

more I can say.

telling you that is the whole reason that we are here is AMG.

And on that point with respect to whether we should

just have these proceedings play out, the problem, Your Honor,

is that the Supreme Court in AMG said that we need a cease and

desist order from the commission before we can pursue the

follow-on Section 19 action.

There is no evidence the

And I just -- I don't know how much

I'm here before you, Your Honor.

And I am

It strikes as duplicative and certainly to my

knowledge unprecedented to have a federal judge decide all of

the factual issues that the commission would normally view with

their expertise in consumer protection law.

those findings are go to the commission to potentially rubber

stamp though, to be quite honest, I just don't know what that

would look like because we still at the end of the day need

this cease and desist order from the commission.

unclear how that would work.

To have whatever

So it is

So the reason that we are trying to do this now is it

is a clean break.

It is not looking for a better outcome.

is simply that the commission is the one that needs to issue

the cease and desist.

because this is what they are there for, to do the factual

findings to and from those findings come up with their cease

It makes sense for them, particularly

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and desist order.

THE COURT:

All right.

and remember to go a little slower if you would.

MS. FRASSETTO:

THE COURT:

Let me stop you for a second

I apologize, Your Honor.

It is all right.

But you want a good

record also in terms of what is being argued.

But let me make -- all right.

The injunctive relief

order that you are requesting is, in fact, a cease -- in effect

a cease and desist, among other things, order that you

submitted for this Court to enter.

the commission wouldn't be in a position to consider my

findings and basically do that rapidly.

And it doesn't mean that

Or am I -- what is in error in that?

have been -- it may be sort of somewhat unprecedented.

think that the Supreme Court's decision after, as you said, 40

years of authority including in this circuit -- the Eleventh

Circuit -- you know, it presents some very unique circumstances

for those cases that are sort of caught in the headwaters of

all of this.

I mean, it may

But I

So, you know -- and there are other cases I know

that -- where the commission has decided just to allow the case

to proceed in federal court, which apparently are ones where

the biggest issue is injunctive relief.

they would be in the same pickle that I'm in.

But -- so all right.

It must be, or else

So we have a unique

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circumstance because of the procedural history of this case and

the timing of AMG.

would present such a challenge for the commission to rule based

on whatever finding I might issue.

MS. FRASSETTO:

And, you know, I don't see though why it

So, Your Honor, one issue too that we

have flagged in the briefs is that there is a little bit of

daylight between the standard for federal injunction and the -THE COURT:

All right.

And I understand that.

understand that.

MS. FRASSETTO:

And so there could be some issues

where there is some, you know, duplicative efforts and some

inefficiencies there where the commission can't simply rubber

stamp the federal injunction because there is this different

standard.

So I would just -THE COURT:

And I understand that fully.

I think it

would be helpful for the Court if you would delineate how you

think that would play out in this case since you have already

gone through the summary judgment record and you are familiar

with the record.

MS. FRASSETTO:

Sure, Your Honor.

So, you know, with

respect to the defendants' affirmative motion, if we were to

play this out and then go back to admin, it strikes me that a

lot of the work that Your Honor would be doing there would be

not particularly relevant to the admin proceedings.

Obviously,

we are aware that we cannot get money under 13(b).

So any

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decision there would not preclude us from going to

administrative proceedings.

And then on the injunction, again, many of the

defendants' arguments are based on 13(b).

say that what they are doing they couldn't reuse because I

think it is slightly different for the parties.

are essentially arguing what the practices show that they meet

this standard.

slightly different standard of applying those facts to the law.

And so that is where --

And that is not to

The parties

But, Your Honor, for the commission, there is a

THE COURT:

I understand that.

But I'm asking you to

tell me how that plays out, more specifically how you can

conceptualize what that different standard would mean in terms

of the evidence being presented in front of the Court versus --

I mean, I realize the commission would have to consider that

and would have to go to the proceeding to consider that and

then present -- and that there is some type of more bad faith

like element of that standard.

But tell me how that would play out here.

I mean, it

would be -- it would have to play out whether you proceed

obviously now if I let you dismiss or later on.

So I'm just trying to understand what it actually in

practice you think the shape of the case is, the evidence that

would be -- type of evidence that would be presented.

MS. FRASSETTO:

Yes, Your Honor.

I mean, as we

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mentioned, the summary judgment brief and the arguments we have

raised would be at least for us the same.

reason to think that defendants would present any different

evidence, particularly on the injunctive point.

And there was no

So, again, that is where it would be duplicative

because Your Honor would be deciding based on the federal

standard and then the commission.

You know, here is where I think the issue potentially

is.

So if Your Honor was to grant an injunction, then it

strikes me that the FTC or the commission would still have to

consider its own standard and spend more time.

have two judicial proceedings where that was happening.

then I also could --

THE COURT:

All right.

So you would

Stop for a second.

And

What I'm

trying to say -- tell me -- I don't live in the FTC world.

sorry.

I'm

So you have to tell me what does it mean in terms of

the difference in the standard that would be applied by the

commission for a Section 19 claim.

mean, there is a statute of limitations and fine

requirements -- some sort of -- and I don't know what that --

surely there are Section 19 cases.

I know that there is -- I

So could you explain to me what in practice in this

case, knowing the nature of the evidence in this case, what

would that mean.

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MS. FRASSETTO:

So, Your Honor, if it would be

helpful, I can provide you with the high-level considerations

of the commission and the cease and desist standard.

give you the citations.

before.

I don't believe we have done them

So there is Stouffer Foods Corporation, which is 118

I can

FTC 746, and the pin cite is 811.

THE COURT:

Okay.

And that is from 1994.

Let me just say:

You can tell me

the name of the case, and then you can provide me later the pin

citation.

All right?

MS. FRASSETTO:

And POM Wonderful is another one from 2019 -- another

Okay.

Thank you, Your Honor.

FTC proceeding.

Essentially, there are three considerations:

The

seriousness and the deliberateness of the violation; the ease

with which the violative claim may be transferred to other

products; and whether the respondent has a history of prior

violations.

And certainly we think that those standards are met

here as much as we think the standard for federal injunction is

met.

if this case was transferred to the commission to decide.

Certainly I'm sure defendants disagree.

THE COURT:

But that is for

How long do you think it would take if I

deny summary judgment -- which, of course, is not what the

defendant thinks is appropriate.

But if that were to occur on

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the -- on the injunctive relief claim before me, obviously not

the Section 13 claim, how long would it take do you think to

try the case?

MS. FRASSETTO:

THE COURT:

MS. FRASSETTO:

In front of Your Honor?

Uh-huh (affirmative).

I'm sorry, Your Honor.

Would that be

in terms of like prepping and doing all the pretrial work as

well or just how long do we think --

THE COURT:

How long would the trial last?

MS. FRASSETTO:

You know, sitting here today, I admit

I haven't thought about it.

counts.

we deposed.

You know, there are several

There are several experts.

I don't know.

MR. MUNDEL:

You know, many witnesses

Three to four weeks potentially.

Our view is the case would be less than

a week overall.

of the FTC's in just a few days.

a week overall would be more than sufficient.

one expert.

We could try our case depending upon the scope

Two days maybe.

So we think

The FTC has only

That was a rebuttal, I believe.

THE COURT:

Okay.

Well, is there anything else

necessary to be done in the case to have a trial on the

remaining claims not disposed of by AMG?

MR. MUNDEL:

Your Honor.

Not from the defendants' perspective,

We're prepared.

THE COURT:

What about from the FTC's perspective?

MS. FRASSETTO:

It would depend on Your Honor's

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rulings on summary judgment how much is left and whether any

motions in limine would be appropriate at that time.

THE COURT:

Well, you have a motion in limine

pending; right?

MS. FRASSETTO:

Right.

I'm sorry.

And I would note

that that is very specific to defendants' use of Professor

Wind's testimony in the summary judgment motion, which is why

we think that that would also be useful in a commission

proceeding.

MR. MUNDEL:

Could I respond to a few points, Your

THE COURT:

Yes.

MR. MUNDEL:

You already mentioned other cases that

Honor?

the FTC has pending in federal court before or since AMG was

decided.

implied in none of those cases has the FTC done what they are

doing here.

the administrative forum.

And in none -- Your Honor I think either said or

They have not tried to dismiss those in favor of

And in those cases, it is not because the injunctive

relief is their primary form of relief.

FTC is seeking restitution or at least was seeking restitution

prior to AMG too.

annual report that billions of dollars in restitution would be

obtained.

In those cases, the

And the FTC touts on its website and its

So it is clear from the face of those cases that

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restitution was a primary form of relief.

believe they could not move those cases to the administrative

forum is because they are doing exactly what Your Honor

suggested here, which is continue litigation in front of the

Court.

administrative proceedings to get money.

not doing that here is because their case at summary judgment

is not substantial.

And then when they -- when and if they succeed, do the

The second thing --

MS. FRASSETTO:

THE COURT:

But the reason we

The reason they are

Your Honor --

All right.

So before you go to the

second thing, let me let Ms. Frassetto respond to that.

MS. FRASSETTO:

Yes, Your Honor.

Thank you.

I just want to point out that, you know, each FTC

case that is in litigation has very unique facts and

circumstances and there are a variety of -- I'm sorry I'm

talking too fast.

There are a variety of reasons why we would have made

any decision.

And I just want to point out that many of those

had rule violations that allows the FTC to stay in federal

court and obtain monetary relief.

Credit Bureau Center, which was -- which is currently in the

Northern District of Illinois but went to the Seventh Circuit

and was at one point a companion case to AMG in the Supreme

Court, there was a rule violation there.

So, for example, FTC v.

The FTC initially

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only pled monetary relief under Section 13(b); in the wake of

AMG sought to then seek relief under Section 19 because of that

rule violation.

but, you know, had really interesting language when the

defendants were attacking the FTC's good faith, as they are

doing here.

And the Court not only accepted that argument

And if it is okay, I would like to read that.

And that reads, from the day the complaint was filed

until the Seventh Circuit decided the appeal in this case,

there was controlling circuit precedent permitting the FTC to

seek restitution using Section 13(b).

Capital, eight circuits permitted the FTC to seek monetary

damages under Section 13(b).

who proffers arguments based on overwhelming and longstanding

precedent has unclean hands once that precedent is overturned

after over 30 years.

arguing against the prior interpretation of Section 13(b) might

be proof that wisdom comes late -- even to courts -- but it is

not proof that the FTC is an abusive litigant.

In fact, prior to AMG

It cannot be true that a party

The fact that other parties have been

And, Your Honor, I think that is really relevant

here.

judgment ruling.

rule violation hook we cannot get money here.

get a cease and desist order and judgment from the commission

before we can do that.

We are not trying to, you know, get out of that summary

It is simply that because we don't have the

THE COURT:

And we need to

You have to give me the cite again to

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what you were reading from.

MS. FRASSETTO:

Yes, Your Honor.

That was FTC v.

Credit Bureau Center.

was out of the Northern District of Illinois, and that was

issued on September 13 of last year, 2021.

MR. MUNDEL:

It is 2021 Westlaw 4146884.

And that

Just to be clear, Your Honor, there are

many cases the FTC has in federal court with no rule violations

where they were seeking restitution.

directly in federal court under Rule 13(b).

exactly what Your Honor suggested.

then if they win going to the administrative proceeding.

They can't seek it now

But they are doing

Commission the case and

And, again, we have never heard anything from the FTC

about they cannot do that here.

They have never provided any

reason where they cannot reserve their right to get full

restitution by litigating the case efficiently and particularly

in this court and then going to the administrative proceeding.

There was one issue raised about the scope of the

injunction and whether the injunction standard is similar or

different from the FTC proceedings.

getting an injunction would be more beneficial it seems to me

than a cease and desist order.

desist order, an injunction has immediate federal court effect

and must be complied with.

The answer is, first,

Because unlike a cease and

With a cease and desist order, they have to take

another step to enforce it in federal court.

So if they wanted

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to stop ongoing conduct, what they would be doing is continuing

to seek an injunction here.

manner.

That would be the efficient

The only reason you have heard from the FTC not to

follow the path Your Honor suggested was because of duplication

and inefficiencies.

given the duplication and inefficiencies that have already

imposed and caused on this court and on the defendant.

And, Your Honor, that is not a valid basis

It is -- they cannot suggest now I think credibly

that any meaningful differences between the injunction standard

and the cease and desist order standard are so great that it

would justify moving to the administrative proceeding.

When we look at the two standards, we see no data to

answer your specific question.

And the type of evidence that

would be presented and the decision of the Court or the FTC

would make we see no daylight.

The evidence that we will present is primarily -- on

the injunction is primarily two-fold.

First, that there is no

liability at all.

cease and desist order, they first need to prove liability and

they can't do it.

it would resolve the issue.

Because in order to get an injunction or a

And if the Court reaches that determination,

The second type of evidence we would present on the

injunction would also be presented on the cease and desist

order.

And that is there is no ongoing conduct that's even

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being challenged by the FTC.

The advertisements that they

challenge ceased years ago.

They were not deceptive.

were not unfair.

even in circulation today.

They were not unlawful.

They

But they are not

All of the things they challenge ceased years ago.

And for that reason, they can't get the injunction and they

can't get a cease and desist order.

So to answer your question directly, the evidence

that would be presented, the decision we believe is precisely

the same when Your Honor rules on it as we think you should

that there should be no injunction in this case.

MS. FRASSETTO:

Your Honor, if I can be heard

briefly.

THE COURT:

Go ahead.

MS. FRASSETTO:

So with respect to whether Your Honor

completes the case and it goes back to the commission, quite

frankly, it is unprecedented and I understand that because of

AMG and that is why we are here.

So we are just really concerned that if there is any

risk that consumers wouldn't get money by going this route that

is unprecedented and hasn't been tested or challenged before

that at the end of all of this we would have spent all this

time with no money for consumers.

Whereas, if we move now, we would simply be going

under the commission's existing rules to move for summary

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decision, get a cease and desist order, and come back to

federal court, which is exactly what was contemplated by the

Supreme Court in AMG.

here.

But that is all we are trying to do

MR. MUNDEL:

Your Honor, if the FTC was so cautious

and concerned about that, then they would have proceeded under

19(b) to begin with.

Seventh Circuit already held they couldn't get restitution.

this did not come as a surprise.

Because when they filed their case, the

Additionally, if it was their 100 precent sole focus,

they could have done that -- they frankly should have done that

from the beginning when they made a strategic choice not to.

And it would be legally prejudicial at this stage.

all we are required to show.

it was an abuse of litigation position.

cause legal prejudice.

And that is

Not that it was bad faith or that

But that it would

And we have absolutely met that standard here because

of the loss of the defense.

But in addition, the FTC says they

are concerned that they don't know how -- they don't know if it

would work.

-- you pointed this out -- Your Honor pointed out today, they

never identified any way of limiting (Zoom interference) for

them to litigate the case fully in front of Your Honor.

prepared for trial as soon as Your Honor sets it for trial if

our summary judgment motion is denied.

They have never identified any reason in our brief

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And they could then proceed expeditiously to the

administrative proceeding.

And they haven't presented a single

reason why that wouldn't work.

THE COURT:

Well, they have argued that it is an

enormous addition of -- a piece of additional work.

But

from -- from your perspective, let's say I rule against your

client, which you don't think will happen -- but on the merits

in a trial.

Are you going to -- if they then proceed on their

pending petition, what other -- you know, I cannot believe you

are not going to be arguing a whole other set of defenses.

know -- I understand that there is a different standard of

proof as to -- as to 13 and 19.

for them.

they get back to the commission.

MR. MUNDEL:

So you are saying it is easy

But I'm sure you will not make it easy for them once

No, Your Honor, I don't think that is

the case.

federal court proceeding and the FTC proceeding would be a

scienter.

I think the only additional defense between the

That is the only defense that would be different.

And it would not be additional work to continue this.

First, if we prevail, that ends the case.

if we don't prevail, things that are litigated in front of Your

Honor we would have issue preclusion.

Honor decides against us, that would bind us.

So that is a very --

So anything that Your

So it would then make the cease and desist

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proceedings very efficient because the -- anything that needs

to be decided that you already decided, that would be done.

You resolved it conclusively.

So the scienter defense, that is the only issue that

we see that would be different in the cease and desist

proceeding.

MS. FRASSETTO:

So, Your Honor, just to that point,

there is no scienter defense.

I don't quite understand what

the defense counsel is speaking of.

If he is talking about the reasonable person standard

in Section 19(a)(2), that would be determined by a federal

judge in a follow-on action.

admin would be specifically Section 5, precisely what Your

Honor is hearing today.

MR. MUNDEL:

The cease and desist action in

Well, if there is no scienter defense,

Your Honor, then -- you know, if that is the position of the

FTC, we can litigate that legal issue.

position, then there is no daylight between what Your Honor

would decide in the court and what they would need to prove

there.

But if that's their

And that admission from the FTC is justifying

precisely why the Court should keep this case, decide summary

judgment, and, if necessary, set the case for a trial in short

order.

THE COURT:

I gather you don't though agree that that

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is the case.

Would either of you point us to -- Ms. Frassetto,

first of all, to any authority as to that that is the case?

I mean, I understand that is what I was trying to

pursue earlier.

What would have -- because you were arguing at

some point I thought that there was an additional -- it would

require additional work on your part in front of the commission

to be presenting it at that point.

to get at.

That is what I was trying

Ms. Frassetto, do you understand what I'm asking you?

MS. FRASSETTO:

THE COURT:

No.

I apologize, Your Honor.

That's all right.

It was a long

question.

As I understand it, the FTC is required to show that

a reasonable man would have known under the circumstances that

the conduct at issue was dishonest or fraudulent in order to

obtain monetary damages on behalf of consumers.

Is that right?

MS. FRASSETTO:

That's correct.

But that would be in

a follow-on federal court action after the FTC -- it is after

the commission gave us a cease and desist order.

THE COURT:

All right.

Yes.

So that is my -- so it is

argued by -- Mr. Mundel, why is that, in fact, not a pretty

simple step of going back to the commission to get the cease

and desist order that is based on the evidence and rulings of

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the Court and then come back to the Court for the Section 19

relief?

Because you were saying at some juncture -- and maybe

I misunderstood -- that it would be more work.

I mean, I

understand you would be going back and forth.

But I'm not sure

that it is, in fact, then -- if all of that showing has to be

in front of this Court, then it is not really an enormous

amount of work in front of the commission to do this in two

steps.

MS. FRASSETTO:

So if I understand Your Honor's

question, you are saying why not keep the case here, resolve

liability -- let me ask, Your Honor.

resolving injunctive relief in federal court as well?

THE COURT:

Would you also be

Well, you've asked for injunctive relief.

You have a proposed order that you filed.

And I would -- if I

am authorized to do so, I would enter that.

go back to the commission and get whatever cease and desist

order.

And then you would

And what Mr. Mundel has argued is that this is an

easy -- there is no daylight between the two.

they issue that.

relief.

All right.

Then

Then you come back here for the Section 19

MS. FRASSETTO:

I understand, Your Honor.

Yes.

terms of liability, the same standard, correct.

there is a slightly different standard, which is where we think

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that there could be issues with judicial inefficiencies.

The bigger issue is the uncertainty with this being

proper and whether defendants would then challenge that somehow

because the federal court decided and then it went to the

commission to essentially rubber stamp.

because of the difference in the injunctive relief standard

whether there is any procedural impropriety there.

But, again, who knows

So that is our concern is that this just strikes as

open to more challenges.

relief for consumers, we're at a place where it makes sense to

go to the commission and just have them hear everything under

the rules that the Supreme Court contemplated in AMG.

THE COURT:

And when we really just want to get

Well, one of my concerns, frankly, is

given what I've observed in this case -- and I understand why

you think that would be a proper and more immediate win.

then, of course, it is also possible that the defendants here

may appeal my decision too if I rule in your favor.

So if you are concerned about procedural obstacles,

it could become worse in a whole other way.

lack of interest on their part of litigating the issue.

understand your concern.

basically holding up all these proceedings.

But

I don't see any

And I

But I have a concern that I'll be

I mean, I have cases that have been up in the Court

of Appeals -- and this is no offense to them because it is just

the way things are at this moment -- that have been up there

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for two years.

trial at the moment -- a civil case -- because of the fact that

there are people who have been sitting in prison for years at

this point who haven't been able to get a trial.

certainly always because of the Speedy Trial Act have to

prioritize that.

It is very hard to get, of course, anything to

So we

That is why I was asking you how long do you think it

would take to go to trial.

terms of when I could conceptualize trying to expedite this and

conduct a trial in the public interest.

Because it makes a difference in

And you now at least have a petition in front of the

the commission that is -- or complaint that at least for

purposes of what you have got has a -- I understand a

three-year statute of limitations.

It may not be the whole pie.

But it is at least a

portion of the pie, assuming you win.

And if, in fact, your

evidence is -- construing your evidence and your allegations in

the light most favorable to the plaintiff, you are arguing that

this is a repeat performer -- a repeat violator.

violations would be meaningful.

So those

We're in a unique and difficult circumstance.

And if

we were to schedule a trial and I were to deny summary --

basically say that I have to decide based on the evidence,

then, you know, you would have enough time to prepare because

there is no way I could probably hear this case until fall or

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winter of -- next winter.

So that is not really a question.

You have sort of

held your place, at least.

Because alternatively -- let's just

look at -- you know, the defendants argue, well, then you need

to pay their fees or a portion of their fees.

haven't discussed that.

And we really

And -- but I can't imagine that the commission is

very willingly wanting to -- let's say -- I don't know, you

know, how this money might be spliced and diced.

course, you understand their argument that at least anything

that you litigated after the Supreme Court issued its decision

in April that the commission should be responsible for in terms

of fees because it should have just stopped at that point

according to -- what is the argument against that as being a

condition for a voluntary dismissal?

MS. FRASSETTO:

For starters, there just is no prejudice in terms of

the work that was done in that time frame precisely because we

intend to file substantially identical papers in the admin

litigation in summary decision.

reused.

But, of

Sure, Your Honor.

So all of that work can be

And, second, if it is, you know, balancing the

equities and doing justice between the parties, you know, this

is -- again, this is taxpayer money.

potentially redress on the line.

It is consumers' money,

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So we just think that that weighs in favor of no

conditions, particularly where there is no prejudice here.

So -THE COURT:

So, Mr. Mundel, why do you say there is

prejudice?

this at the FTC, you would -- the same evidence would be

necessary.

MR. MUNDEL:

Because if you are going to have to be litigating

Yes, Your Honor.

If I may just in ten

seconds touch on two topics you mentioned earlier.

About the appeal, I think you are absolutely right.

This is an issue that the defendants take very seriously and

would appeal if they were to not prevail on this.

would take time.

And that

As far as the trial goes, because it is a bench

trial -- we are certainly well aware of the issues in the

federal courts right now for trials.

it could be broken apart into pieces, if necessary.

be done, you know, a little bit easier than a jury trial, which

we know would be the Court (Zoom interference).

But with a bench trial,

It could

So we believe the trial could be done as soon as Your

Honor is available and the way that is most efficient for Your

Honor.

On the question of fees, we prepared a PowerPoint

presentation that you may have available to you.

Page 6.

We have a chart of the fees.

It is on

And I can walk through

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those and explain the prejudice.

THE COURT:

Okay.

MR. MUNDEL:

Page 6 of the PowerPoint.

If I may start, Your Honor, with the following --

THE COURT:

All right.

I'm on Page 6.

MR. MUNDEL:

The FTC's argument here that there is no

Let me just pull it up.

All

right?

I'm just pulling it up.

prejudice is based upon what Ms. Frassetto said that they would

file substantially identical papers to what they filed in

federal court -- they would file substantially identical papers

with the FTC.

That proves the point that we have just been

discussing, that there is no daylight between the -- in their

view the usual standard in the proceedings in front of this

court and in front of the FTC.

So in their view, there is absolutely no reason why

they shouldn't litigate the case in front of Your Honor, have

Your Honor decide the case, and then go to the administrative

proceedings.

are substantially identical.

should get to first.

Because they say the standard and the materials

So that is, I think, what we

If we do reach the issue of fees, the fees here are

substantial.

The total fees from when the FTC began this

litigation are over $17 million.

So this is not an ordinary

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case, at least an ordinary case that I'm familiar with.

The fees since litigation began are more than $10

million.

saying bring it in federal court.

that.

case in federal court they knew that the ability to get

monetary relief in federal court was in doubt.

because the Seventh Circuit held that.

commentators and parties and commissioners had been saying it

for years.

statute (Zoom interference).

And at the time the FTC brought this case, we're not

We're absolutely not saying

But we are saying that when they decided to bring the

They knew that

They knew it because

And they knew it because the same text of the

But the FTC made a strategic risk -- it was

strategic.

in federal court instead of going directly to their

administrative proceeding.

They determined they would rather assume that risk

They should be held to that completely, have this

motion denied.

that cost and expense that they imposed on the defendants by

making that choice.

At a minimum, they should bear the burden of

So the litigation fees are $10 million.

that is the appropriate fee.

litigation, Your Honor.

started, that would be appropriate.

We believe

The 17 million, that is prior to

But the 10 million since litigation

If the Court wanted to break it down further, there

are other particular categories where the prejudice is even

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more egregious.

One example is in the data that was produced for

damages.

After more meet-and-confers on the topic that I have

maybe done in total on my career, we discussed data with the

FTC.

$574,000.

for their damages.

model, we produced that.

be reused because the data that they used in the court

proceedings is different from the standard they have to meet

not for the cease and desist but for monetary relief under

19(b).

They have to show a higher standard of reasonable man and

fraudulent and knowing deceit.

And we produced 6000 gigabytes.

It cost more than

And the use of that data, according to the FTC, was

And in order for them to have a damages

That money deduction is not going to

Because they can't just show a violation restitution.

The second piece of the fee amount that should be

shifted is the million dollars in our expert report that has

rebutted their damages calculation because that was -- that

damages rebuttal was based on the Section 5 in court standing,

not based upon the standard in 19(b).

It will have to be redone.

So it can't be reused.

And the third significant category of fees are what

was incurred since AMG was decided.

Because when -- this

didn't just come out of the ether.

We were all watching it.

Right?

We discussed it with the

FTC counsel repeatedly.

We knew that it was coming.

And there were dozens and dozens of

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discussions.

Some cases with the FTC were stayed early on in the

litigation pending a decision by the Supreme Court in AMG.

FTC did not want to stay this case.

were planning what they would do if AMG was decided -- because,

you know, of course, they were.

So we proceeded.

The

So they

And when AMG came down, instead of at a minimum

calling us and saying, FleetCor, Mr. Clarke, this is what we

may do, this is being considered, why don't we put the

litigation on hold so we don't run up the burden and the

expense on either the court or the parties, they didn't do

that.

it cost $686,000 since AMG was filed.

They continued to file more briefs, more motions.

And

And that is to us the most egregious fee shifting,

that there is no basis for them not to have given advance

notice, sought a stay.

have us file all these briefs, more than 4000 pages between the

parties, that at a minimum, 686,000 of the fee should be

shifted.

THE COURT:

And the decision not to do that, to

That is since -- when you say AMG --

$686,000 roughly in fees since the petition was granted or

since the Supreme Court decision was issued?

MR. MUNDEL:

Since the decision was issued, Your

Honor.

The decision was issued.

Again, when the petition was

granted in the (Zoom interference) the case, we think they

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should have known that the writing was on the wall and they

could have made a different determination.

fees for that.

And they should pay

But at a minimum --

THE COURT:

When was the petition granted?

MR. MUNDEL:

The petition was granted -- one second,

Your Honor.

It was granted, I believe, in December of 2019.

But

let me confirm that.

Yes.

It was granted a few days before they filed

their complaint in December 2019.

not only was the petition granted but prior to that they --

normally on behalf of the United States the solicitor general

files a petition with the Supreme Court.

So they knew at that point

We believe it may be the second or third time in

history the solicitor general did not file a petition.

The FTC

filed it on their own litigating authority.

not to stay the case but to seek restitution from us, seek

discovery about restitution from us.

of $10 million because that was the beginning of the

litigation.

And they continued

And that was to the tune

But, again, at a minimum, once AMG was decided and

the Supreme Court said once and for all that they could not

obtain restitution directly in this proceeding, if they were

going to do this, at a minimum they should have informed us,

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given us an opportunity for a stay, not filed additional

briefing.

Say, for example, they filed a motion to exclude an

expert months after AMG was decided.

file that motion (Zoom interference).

THE COURT:

There was no reason to

Ms. Frassetto, do you want to respond to

that?

MS. FRASSETTO:

Yes.

Thank you, Your Honor.

Again, I just want to start with it is incredibly

upsetting to me that defense counsel continues to assume that I

was saying or doing or the FTC was saying or doing something

than what we have told defendants and the Court.

simply not true.

That is just

With respect to defense counsel seeking the

10 million, I mean, there is -- there was no way to know that

AMG would go that way.

the Eleventh Circuit confirmed in the FTC v. Simple Health

Plans case that the Eleventh Circuit precedent was that there

was monetary relief available under 13(b).

In fact, after we filed our complaint,

And I already read to Your Honor the language from

Credit Bureau Center in the Seventh Circuit, which confirmed

that view that there just wasn't a (Zoom interference) with

respect -- with any certainty until the decision came out.

With respect to the data, it is inaccurate to say

that was only for restitution.

As I noted in my declaration

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and the supporting documents, the data was 100 percent used to

prove, for example, that the savings were not as advertised,

that was substantial harm from unfair fees.

absolutely would be reused in a Section 19 action.

the same underlying conduct.

And that

It is still

With respect to defendants' rebuttal report on

damages, again, that went to liability.

defendants cited that in support of their opposition to our

summary judgment.

advertised.

payments on time.

goes to liability, not restitution.

In fact, the

She concluded that the savings were as

That goes to liability.

And that FleetCor posted

We disagree with that.

But, again, that

With respect to the summary judgment briefs, as we

have stated many times now, those will be reused.

see any prejudice there.

reason why that work product will be wasted.

So we don't

And defendants haven't given any

And then, finally, with respect to the Daubert

motion, as I also mentioned before, that was, in fact, filed as

a motion to exclude the testimony that was proffered in support

of the summary judgment motion.

defendants would again use Professor Wind in the commission

proceedings, we certainly would reuse that work.

MR. MUNDEL:

correct two things.

cert in Credit Bureau.

And certainly assuming that

I mean, Your Honor, if I may just

It was December 2019 when the FTC sought

And that was when the Department of

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Justice refused to join.

Court granted cert in both Credit Bureau and AMG.

THE COURT:

It was July 2020 when the Supreme

All right.

I know the defendant has

asked to address the summary judgment briefing.

And I'll

certainly give you some opportunity to do that.

But I don't

really basically -- A, I think that the issues raised in the

Government's Daubert motion are very substantive ones.

sure I would be able to explore all of that in a meaningful

fashion today.

fly-by-night motion.

that they have raised.

I'm not

But I do think that it is not -- this is not a

There are some very significant concerns

But as a whole, I'm not sure other than saying that I

don't have jurisdiction at this point to consider the -- a

monetary claim for relief.

seem to me that this would be a very difficult case to grant

summary judgment on based on the evidence presented.

Though I might later on.

It would

I mean, there are evidentiary disputes even if -- and

you are -- I know that the defendant vigorously argues that the

evidence -- that there is not basically sufficient evidence to

support the FTC claim.

seems to me to jump to that high of a hurdle to make -- given

the record here.

But it would be hard for me to -- it

And -- but that is what you are arguing, aren't you?

This is to Mr. Mundel.

MS. FRASSETTO:

Your Honor, before we begin on this,

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I just want to note that defendants' request for oral argument

was only about the stay and dismissal without prejudice.

am not fully prepared to discuss this.

THE COURT:

MS. FRASSETTO:

just wanted to let you know that.

THE COURT:

So I

That's fine.

I can answer some questions, but I

Well, I'm not going to spend much time on

it.

But I'm just trying to understand the defendants' position

as a whole without going through all of the evidence.

MR. MUNDEL:

No, Your Honor.

I think we are not

seeking -- I think the way you described the evidence is

exactly right.

many facts in dispute.

more facts in dispute when it takes 5000-plus pages to go

through all the facts.

When it comes to liability, there are many,

It is hard to imagine a case that has

There is a lot of competing expert testimony.

There

is competing fact testimony.

documents.

declaration saying one thing and they testified to something

else.

There is interpretations of

There is even some witnesses where they filed a

So there's many areas of dispute.

And that is why

our principal view is summary judgment should be denied on

liability and it should proceed to trial under the issues.

Our motion for summary judgment was really limited in

two respects.

The first respect was restitution.

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don't need to talk about.

The second respect when we moved for summary judgment

was solely on the injunction issue because the FTC has not

presented in our view any evidence of ongoing conduct, let

alone misconduct.

is a much more limited issue in our motion.

It stops at a particular point in time.

But generally on liability, we absolutely agree there

are more facts in dispute than we can talk about today even if

we wanted to.

THE COURT:

Ms. Frassetto, do you want to just

respond to that limited question as addressed by Mr. Mundel?

MS. FRASSETTO:

We disagree that there are facts in dispute.

most notably, I would note that the defendants relied very much

on Professor Wind.

necessary to decide the summary judgment.

findings, their defense really falls apart.

much to attack on what we have established from the actual

record based on the documents and advertisements and our own

survey.

And

And that is, in fact, why that Daubert is

THE COURT:

Sure, Your Honor.

Because without his

And there is not

So, Mr. Mundel, if I were to grant in

whole or in large part the Government's motion as to this

expert witness, what do you have?

MR. MUNDEL:

Honor.

That is only one piece of our case, Your

Professor Wind did a -- we believe should not be

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excluded.

His survey conclusively shows that there is not

deception here.

But that is only one piece of the case.

Our other -- one of our other experts, Professor

Antoinette Schoar, the professor at MIT, she ran an analysis,

as Ms. Frassetto said, on liability and she concluded that

there was no deception as to savings claims and the issues.

we have expert testimony that certainly creates a dispute of

fact.

Second, we have a rebuttal to the FTC's primary

expert.

this is a primary evidence conception.

where he asked FleetCor customers years -- sometimes up to

eight, nine, or ten years after they signed up do they recall

being informed about the fees at the time they signed up.

he refused to let them say they don't know.

don't know, he didn't record it.

They have one expert.

And what he did was he did -He did a memory test

So that is their primary evidence.

And

If they said I

And we believe it

is not -- it is not enough to meet that burden.

rebuttal expert who reran this and explains if you look at the

data the best way it actually proves FleetCor customers were

informed of their fees.

And we have a

So, again, valid expert is a basis for you to deny

summary judgment.

In addition, they rely on fact witnesses.

They have a fact witness who says FleetCor employees told me X.

We don't get what X is.

But FleetCor told me X.

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Our employees testify in their deposition and

declaration they never said that.

That is a classic he said,

she said and a basis to deny summary judgment.

the FTC relies completely on their own -- their own view of

what should be -- how things should be interpreted in a way

that is improper for a summary judgment motion.

judgment, the Court interprets all inferences against them, not

in their favor.

In addition,

At summary

And I will point to Your Honor on Page 4 and 5 of our

opposition to the Wind Daubert motion we explain all of the

disputed facts that exist even if the Court excludes Professor

Wind.

a number of facts.

And we gave that to the Court as a convenience outlining

THE COURT:

Thank you.

I'm going to just go offline

for a second so I can talk to my law clerk on this case,

Ms. Boring.

(A brief break was taken at 11:57 A.M.)

So I will be with you shortly.

THE COURT:

All right.

So just a few additional

questions.

Ms. Frassetto, are there any other comparable cases

that you think I should look at that -- involving federal

agencies or the commission that haven't been brought to my

attention?

MS. FRASSETTO:

Yes, Your Honor.

I can give you -- I

guess there's two ways to respond to that.

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One, there are other cases post AMG where the FTC has

switched strategies.

admittedly.

So they are still on the hook for monetary relief.

to give you those, if you would like.

But that is because there is the rule violation.

I'm happy

Otherwise, the other one I can think of is -- one

second.

wrong document up.

Let me pull it up for you.

THE COURT:

None where we have gone to admin

I apologize.

Well, you can send it to me.

I have the

You can

send it to me.

MS. FRASSETTO:

THE COURT:

MS. FRASSETTO:

I found it, Your Honor.

All right.

So this just has to do again with

the, you know, showing of bad faith and presumptions.

is Wicker v. Colvin.

3072260.

District of Florida from May 31st, 2016.

And that

The case citation is 2016 Westlaw

The pin cite is 5.

THE COURT:

MS. FRASSETTO:

And that is out of the Northern

I'm sorry.

307 --

-- 2260.

And essentially the facts

there are that the plaintiff did not overcome the presumption

of regularity and good faith in a federal agency when he failed

to identify a single agency employee or the date of any alleged

conversation that he claims misled him.

relevant here, particularly with Mr. Mundel's declaration.

THE COURT:

And that strikes us as

Well, are there any others where a -- you

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know, there are certainly lots of other agencies that have had

significant adverse rulings against them that sort of probably

caused a little bit of havoc in terms of how the cases were to

proceed.

Is there anything else that you have identified?

if there is, you are welcome to send the submission to us.

think if you can get it to us by Tuesday, I would appreciate

it.

MS. FRASSETTO:

Thank you, Your Honor.

anything sitting here today.

anything.

THE COURT:

And

I don't have

But I am happy to pass along

And, Mr. Mundel, if you have anything,

you are welcome to do that as well.

So as I understand it, in terms of this -- the

standard for showing a Section 19 violation -- having enough

evidence, you are really talking about from your perspective I

guess -- from the commission's perspective is that -- is it

that the evidence would tend to indicate that a reasonable --

the customers who were actually -- is it that the FTC has to

show that the customers were actually deceived or do they only

have to -- or does the FTC only have to show that the ad had a

tendency to deceive or the materials provided to the customers?

MS. FRASSETTO:

Your Honor, we -- I'm sorry.

apologize.

The latter.

The underlying Section 5 standard would

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not be changed.

It is simply whether in the defendants' view a

reasonable person would have considered that conduct to have

been dishonest or fraudulent.

THE COURT:

That is our view.

So proof of actual deception is not

required?

It is just what a reasonable person under these

circumstances would be deceived?

MS. FRASSETTO:

Well, again, it is the FTC's view

that that reasonable person standard applies to the defendant.

Did the defendant -- should the defendant have known that it

was dishonest or fraudulent.

THE COURT:

MS. FRASSETTO:

Right.

The Section 5 standard in terms of

what the consumer takeaway was, that is no different under

Section 19 than it is under Section 5.

THE COURT:

All right.

Well, just go over both of

those with me in the context of this case.

we may end up having to obviously review this on the record.

And I want to make sure I understand exactly how these two

standards are different or not and what they are.

MS. FRASSETTO:

Yes.

actual deception, that is correct.

can't remember how you put it.

THE COURT:

MS. FRASSETTO:

THE COURT:

All right?

Because

All right?

Under Section 5, no evidence of

The latter standard -- I

But it was good with the FTC.

It would have a tendency to mislead.

That's correct.

All right.

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Versus under 19 -- go ahead from there.

What would

have to -MS. FRASSETTO:

Well, Your Honor, it would still be

the tendency to deceive on the consumer end.

of this has not really been tested because we have gone the

13(b) route for so long.

And, again, a lot

But based on our reading of the statute, it is simply

whether -- I suppose putting those two together whether

defendant -- or whether a reasonable person sitting in

defendants' shoes would have understood the advertisements to

have been deceitful, if that is helpful.

THE COURT:

Mr. Mundel, would you answer that

question as well.

MR. MUNDEL:

Yes.

I will start with what the FTC

needs to prove in the first proceeding in this Court under

Section 5 of the FTC act --

THE COURT:

All right.

MR. MUNDEL:

-- the liability question and then move

to 19(b), the new money question.

In order to show that there was deception, the Court

analyzes whether an advertisement is likely to mislead.

that, the FTC must first prove the net impression of the

advertisement -- meaning, what do consumers take away from this

advertisement? -- and that the net impressions is false.

analyzing that question, courts look at the advertisement as a

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whole, not as to individual pieces of it.

But look into the

advertisement as a whole with the context and considers

intrinsic evidence to determine if consumers are likely to be

deceived that the ad is not false.

If the ad is false and there is a false statement,

the Court can look at it and say, that is false.

When it is a

question of a true statement that is likely to deceive, the

Court must look at empirical evidence.

whether a significant percentage of consumers acting reasonably

are likely to be deceived under the circumstances.

liability.

And the question is

That is

Once you get past liability (Zoom interference),

under Section 19, there is a further burden to get monetary

relief.

defendant was not just deceptive but, in fact, it was

fraudulent or dishonest.

a reasonable person would know what they were doing was

fraudulent or dishonest.

And there they need to show that the conduct by the

There is a scienter requirement that

And that 19(b) if you ever -- if you ever get to the

first part, that is where we think the Court should determine

it given where we are and the legal prejudice that would be

caused if at this late stage the FTC is able to take the case

to administrative proceedings.

THE COURT:

I know that seems like a very basic

question to both of you.

But since we have been dealing with

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both things and I am obviously enlighting them in my mind, so I

wanted to sort of straighten that out for myself.

All right.

Well, this has been very helpful.

there is any -- I know there were a number of cases,

Ms. Frassetto, that you wanted to reference before and I said

just send them to me because I will be -- in follow-up be able

to get it so quickly accurately down.

other questions, if there is something -- a case you want to

point out -- but I'm not looking for briefs.

topic and -- put the topic and then put the cases that are

going to be for that topic.

And in response to my

Just give me the

And anything you want to send, send by Tuesday

because I'm really not looking for a brief.

that you probably have looked at and know up to -- upside down

and all around.

This has been very helpful.

It is something

I appreciate the briefs

that have been provided as well as the advocacy on both

parties' part.

Ms. Frassetto, you know, I know that -- I just want

to respond very briefly to the concerns that you expressed as

to the -- in some ways your feeling that your integrity has

been challenged.

And maybe Mr. Mundel feels it in a different way.

don't know.

to vindicate the public interest via the FTC's authority and

You know, I completely respect that you are trying

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that you -- and that people have worked hard on this matter.

And I know that the defendants have expressed their deep

concerns as well.

But it is almost though -- there is a reality that is

such a huge -- it is not even a sea change.

It is a complete

tide change that is different and this would create a lot of

ripples for those who are right in the middle of it.

And I just want to assure you and your fellow counsel

that I don't think that -- maybe there will be some issue at

some juncture about so-called bad faith.

is -- we are in very unique circumstances.

defendants to also understand that.

But, you know, this

And I want the

So I'm not prepared to presume the worst by any means

because I think people including the commission and the

defendants are trying to basically do what you think is best

under the circumstances, which are just, you know, a true

change in tide of -- probably because I've spent some time by

the ocean in the last few weeks that it is -- you can be --

believe it or not, on a day on water in ocean where it is

completely flat and the next day the waves are roaring because

a storm has come in and sent the -- and everything is -- the

currents change direction.

everyone is making sense of it and trying to handle their boats

or handle their swimming and whatever else.

swimmer.

Everything has changed.

And

So -- I'm a big

So that is why it all occurs to me that knowing what

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it is to be in the middle of that and you have got to figure

out what you are going to do.

But the Court understands that context.

want to sort of say that it is not -- I'm not jumping to any

conclusions about any bad faith or anything else like this.

This is the circumstances we face.

as logically and reasonably as possible sort out where we're

going from here and also address the public interest in this

context.

Thank you again.

do before we close today?

And so I

And we're going to try to

Is there anything else we need to

I guess not.

MR. MUNDEL:

Not from the defense perspective, Your

THE COURT:

All right.

Honor.

Ms. Frassetto, anything from

the FTC's perspective?

MS. FRASSETTO:

Nothing from the FTC.

Thank you,

Your Honor.

THE COURT:

hope you stay well.

because it also allows us to put this in front of ourselves and

get going on our analysis and conclude that hopefully in a

reasonable time.

Thank you very much.

And, everyone, I

And I'm glad we were able to proceed today

I know that Ms. Taylor was a clerk in this court.

And I want to say hello to her as well because I haven't seen

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her in a good amount of time.

Not in my chambers.

But she was

very dedicated to the Northern District of Georgia.

And it is

good to see her.

MS. TAYLOR:

see you as well.

doing okay.

I miss everyone there.

THE COURT:

Thank you, Your Honor.

We are.

It is nice to

I hope you guys are

It is a little insane.

But other than that --

MS. TAYLOR:

I understand.

THE COURT:

Well, the thing is I had really come back

to court completely.

MS. TAYLOR:

So, you know, it is sort of like -Well, I think you are -- what you are

talking about with the ocean is so appropriate for life right

now.

everything was moving more smoothly, court resumed, and then

not.

I think, you know, all of us back to the office,

So it is just life.

THE COURT:

Well, we'll see what happens next.

Yeah.

It is.

But there are

greater tragedies than being sent home.

MS. TAYLOR:

Absolutely.

THE COURT:

All right.

of yourselves and your family.

It is.

MS. FRASSETTO:

Be well, everyone.

You too, Your Honor.

Take care

Thank you.

(The proceedings were thereby concluded at

12:17 P.M.)

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C E R T I F I C A T E

UNITED STATES OF AMERICA

NORTHERN DISTRICT OF GEORGIA

I, SHANNON R. WELCH, RMR, CRR, Official Court Reporter of

the United States District Court, for the Northern District of

Georgia, Atlanta Division, do hereby certify that the foregoing

69 pages constitute a true transcript of proceedings had before

the said Court, held in the City of Atlanta, Georgia, in the

matter therein stated.

In testimony whereof, I hereunto set my hand on this, the

9th day of February, 2022.

______________ __________________

SHANNON R. WELCH, RMR, CRR

OFFICIAL COURT REPORTER

UNITED STATES DISTRICT COURT

OFFICIAL CERTIFIED TRANSCRIPT

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

FEDERAL TRADE COMMISSION

______________________________,

Plaintiff(s)

FLEETCOR TECHNOLOGIES, INC., AND RONALD CLARKE

______________________________,

Defendant(s)

)

Case No. 1:19-CV-5727-AT

NOTICE OF FILING OF OFFICIAL TRANSCRIPT

Notice is hereby given that an official transcript of a proceeding has been filed by the

court reporter/transcriber in the above-captioned matter. Counsel/Parties have twenty-one (21)

days from the date of delivery of the transcript to the Clerk to file with the Court a Request for

Redaction of this transcript. If no Request for Redaction is filed, the transcript may be made

remotely electronically available to the public without redaction after 90 calendar days.

Any counsel or party needing a copy of the transcript to review for redaction purposes

may purchase a copy from the court reporter/transcriber or view the document at the Clerk’s

Office public terminal.

2/18/2022

______________

Date

Shannon R. Welch, RMR, CRR

__________________________________

Court Reporter

VERIFICATION OF FINANCIAL ARRANGEMENTS

Proceeding Type:

Proceeding Date:

Volume Number:

ORAL ARGUMENT VIA ZOOM

______________________________________________

1/7/2022

______________________________________________

Notice is hereby given that financial arrangements for a copy of the transcript have been

made with the following individual(s): BRITTANY FRASSETTO

_____________________________________________________________________________

as counsel/party in this case. He/She is to be provided with remote access to the transcript via

CM/ECF and PACER.

2/18/2022

______________

Date

Shannon R. Welch, RMR, CRR

__________________________________

Court Reporter

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Attachment B

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SIDLEY AUSTIN LLP

SIDLEY

1501 K STREET, N.W.

WASHINGTON, D.C. 20005

+1 202 736 8000

+1 202 736 8711 FAX

+1 202 736 8157

AMERICA • ASIA PACIFIC • EUROPE

BMUNDEL@SIDLEY.COM

January 12, 2022

By ECF

The Honorable Amy Totenberg

United States District Judge

2388 United States Courthouse

75 Ted Turner Drive, SW

Atlanta, GA 30303

Re:

FTC v. FleetCor Technologies, Inc. & Ron Clarke, No. 1:19-cv-5727-AT

Dear Judge Totenberg:

At the January 7, 2022 hearing on the FTC’s Motion to Dismiss, the Court invited the

parties to submit citations to authorities bearing on discrete issues, but directed the parties not to

submit supplemental briefs. In contravention of this instruction, the FTC has served a threepage, single-spaced sur-reply that makes new arguments never raised in the FTC’s briefs or at

the hearing. While the FTC’s improper sur-reply should be ignored, Defendants write very

briefly to correct the record.1

First, even though the FTC never previously identified any reason why it could not

obtain a cease-and-desist order and then monetary damages if it prevails in obtaining an

injunction in this Court, the FTC asserts for the first time that allowing this case to proceed to

judgment could jeopardize its ability to obtain a cease-and-desist order. Specifically, the FTC

argues that, if the Court enters an injunction, “defendants would likely argue” that “there [would

be] no remaining conduct for the Commission to enjoin through a cease and desist order.” Dkt.

190 at 3. This is incorrect. The FTC, tellingly, cites no case or rule supporting the proposition

that the Commission cannot enter a cease and desist order when challenged conduct has ended.

Id. To the contrary, by the FTC’s own admission, ongoing conduct is not one of the “three

factors” “the Commission considers . . . for cease and desist orders.” Id. at 3. In addition, the

FTC has already argued and ruled that “discontinuance does not of itself bar a cease-and-desist

order.” See, e.g., Complaint Counsel’s Post-Trial Reply Brief 31, In re POM Wonderful LLC,

No. 9334 (F.T.C. Feb. 7, 2012) (citing FTC and judicial precedent); see also Commission

Decision, In re Pom Wonderful LLC, 155 F.T.C. 1, 52 (2013) (rejecting Defendants’ argument

that “injunctive relief is not warranted with respect to the [challenged ads] because [the

defendant] has already stopped running the ads”). Finally, to assuage any concerns, Defendants

Defendants are prepared to submit a complete response to the FTC’s submission, if directed to

do so by the Court.

Sidley Austin (DC) LLP is a Delaware limited liability partnership doing business as Sidley Austin LLP and practicing in affiliation with other Sidley Austin partnerships.

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SIDLEY

Page 2

represent to the Court that they will not argue that a cease and desist order is improper on the

grounds that an injunction has issued.

Second, the FTC argues that its request to transfer a fully briefed summary judgment

motion from an Article III Court to the Commissioners themselves was somehow blessed by

AMG. See Dkt. 190 at 2–3 (“[T]he Supreme Court in AMG made clear that moving to

administrative proceedings is the proper path in this case.”). This is false. The Supreme Court

said nothing about “moving” a pending case between these two proceedings. Rather, the

Supreme Court recognized that the FTC may first obtain an injunction under section 13(b) and

then seek a cease and desist order in an administrative proceeding to make money damages

available. See AMG Cap. Mgmt. LLC v. FTC, 141 S. Ct. 1341, 1349 (2021) (“[T]he Commission

may use §13(b) to obtain injunctive relief while administrative proceedings are foreseen or in

progress ….”) (emphasis added). That is precisely what the Court inquired about and what the

FTC should try to do here.

Third, the FTC asserts that resolving liability expediently is of the utmost concern.

Defendants agree. Proceeding to trial in this Court is the most expeditious path forward. Doing

so would avoid a multiyear delay caused by an appeal of a Court order granting the FTC’s

motion to dismiss. If the Defendants prevail in this Court, it would end the issue. If the FTC

prevails here, it would streamline (if not entirely resolve) the administrative proceeding, because

any issues decided by this Court would be conclusive.

Finally, the FTC’s letter does not identify a single other case where it is attempting to do

what it is trying here. The letter also fails to identify the many cases where, since AMG, it has

not taken any action to pursue monetary relief in federal court. As in this case, see Dkt. 157, the

FTC has informed other courts that it “is not currently seeking equitable monetary relief under

Section 13(b) of the FTC Act.”2 However, in none of those cases has the FTC disclaimed its

ability to seek monetary relief under section 19(b) if it prevails in the pending federal court

action.

[Signatures on next page]

See, e.g., Notice (Dkt. 44), FTC v. F&G Int’l Group Holdings, LLC, No. 20-cv-73 (S.D. Ga. Aug.

5, 2021); accord, e.g., Opp. to Mot. for Judgment on the Pleadings (Dkt. 99), at 1, FTC v. American

Future Systems, Inc., No. 20-cv-02266 (E.D. Pa. July 7, 2021) (“[S]ince the decision in AMG, the

FTC has pursued only nonmonetary injunctive relief in this case.”); Notice of Supplemental

Authority (Dkt. 104), FTC v. Mail Tree Inc., No. 15-cv-61034 (S.D. Fla. Apr. 30, 2021) (similar);

Notice of Supplemental Authority (Dkt. 47), FTC v. Neora, LLC, No. 20-cv-01979 (N.D. Tex.

Apr. 30, 2021) (similar).

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Page 3

Respectfully submitted,

John Villafranco, pro hac vice

KELLEY DRYE & WARREN LLP

3050 K Street, N.W.

Washington, D.C. 20007

Tel: (202) 342-8400

Fax: (202) 342-8451

Jaimie Nawaday, pro hac vice

Levi M. Downing, pro hac vice

KELLEY DRYE & WARREN LLP

175 Greenwich Street

New York, NY 10007

Tel: (212) 808-7800

Fax: (212) 808-7897

Counsel for Ronald Clarke

Cc:

All Counsel (via CM/ECF)

/s/ Benjamin M. Mundel

Mark D. Hopson, pro hac vice

Benjamin M. Mundel, pro hac vice

Daniel J. Hay, pro hac vice

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, DC 20005

Tel: (202) 736-8048

Fax: (202) 736-8711

Counsel for FleetCor Technologies, Inc.

/s/ Michael A. Caplan

Michael A. Caplan, Ga. Bar No. 601039

Jessica A. Caleb, Ga. Bar No. 141507

CAPLAN COBB LLC

75 Fourteenth Street, N.E.

Suite 2700

Atlanta, Georgia 30309

Tel: (404) 596-5600

Fax: (404) 596-5604

Counsel for All Defendants

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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS:

Lina M. Khan, Chair

Rebecca Kelly Slaughter

Alvaro M. Bedoya

In the Matter of

FLEETCOR TECHNOLOGIES, INC., a

corporation, and

Docket No. D-9403

RONALD CLARKE, individually and as

an officer of FLEETCOR

TECHNOLOGIES, INC.

[PROPOSED] ORDER PARTIALLY LIFTING STAY OF ADMINISTRATIVE

PROCEEDINGS TO PERMIT DISPOSITIVE MOTIONS

Upon consideration of Complaint Counsel’s Motion and Respondents’ Response:

IT IS HEREBY ORDERED that Complaint Counsel’s Motion is GRANTED.

IT IS FURTHER ORDERED that, within 15 days of the entry of this Order, Complaint

Counsel may file, and Respondents may file, any dispositive motions. Except for the date for

filing the motion, any such motion and any responses or replies thereto shall follow the relevant

requirements of the Commission’s Rules of Practice.

IT IS FURTHER ORDERED that, except for deadlines and proceedings directly related

to the dispositive motions permitted under this Order, all proceedings before the Commission

and the Chief Administrative Law Judge in this matter, including all filing deadlines and the

evidentiary hearing, shall remain stayed pending further order by the Commission.

By the Commission.

April J. Tabor

Secretary

SEAL:

ISSUED:

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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

In the Matter of

FLEETCOR TECHNOLOGIES, INC., a

corporation, and

Docket No. D-9403

RONALD CLARKE, individually and as

an officer of FLEETCOR

TECHNOLOGIES, INC.

CERTIFICATE OF SERVICE

I hereby certify that on June 23, 2023, I filed the foregoing document electronically using

the FTC’s E-filing system, which will send notification of such filing to:

April Tabor

Secretary

Federal Trade Commission

600 Pennsylvania Ave NW, Rm. H-113

Washington, DC 20580

The Honorable Michael Chappell

Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Ave NW, Rm. H-110

Washington, DC 20580

I further certify that on June 23, 2023, I caused the foregoing document to be served via

electronic mail to:

Mark Hopson

Benjamin Mundel

Daniel Hay

Sidley Austin LLP

1501 K Street NW

Washington, DC 20005

Tel: 202-736-8157

mhopson@sidley.com

bmundel@sidley.com

dhay@sidley.com

John Villafranco

Levi Downing

Kelley Drye & Warren LLP

Washington Harbour, Suite 400

3050 K Street NW

Washington, DC 20007

Tel: 202-342-8423

jvillafranco@kelleydrye.com

ldowning@kelleydrye.com

Counsel for Respondent

FleetCor Technologies, Inc.

Counsel for Respondent

Ronald Clarke

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The Honorable Michael Chappell

Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Ave. NW, Rm. H-110

Washington, DC 20580

June 23, 2023

By:

/s/ Daniel O. Hanks

Daniel O. Hanks

Federal Trade Commission

Counsel Supporting the Complaint

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.