Opposition Brief — Elite IT Partners, Inc., dba Elite IT Home, et al., Petitioners v. Federal Trade Commission

No. 23-1206

In the Supreme Court of the United States

ELITE IT PARTNERS, INC., DBA ELITE IT HOME, ET AL.,

PETITIONERS

v.

FEDERAL TRADE COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

ANISHA S. DASGUPTA

General Counsel

MATTHEW HOFFMAN

MICHAEL BERGMAN

Attorneys

Federal Trade Commission

Washington, D.C. 20580

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the district court abused its discretion in

denying relief under Rule 60(b)(6) of the Federal Rules

of Civil Procedure in the circumstances of this case.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument....................................................................................... 7

Conclusion ................................................................................... 17

TABLE OF AUTHORITIES

Cases:

AMG Capital Mgmt., LLC v. FTC,

593 U.S. 67 (2021) ............................................................. 4, 7

Adams v. Merrill Lynch, Pierce, Fenner & Smith,

888 F.2d 696 (10th Cir. 1989) ............................................... 6

Adams v. Thaler, 679 F.3d 312 (5th Cir. 2012) ................... 14

Agostini v. Felton, 521 U.S. 203 (1997) ............................... 10

Arthur v. Thomas, 739 F.3d 611 (11th Cir.),

cert. denied, 574 U.S. 821 (2014) ....................................... 13

Biggins v. Hazen Paper Co.,

111 F.3d 205 (1st Cir.), cert. denied,

522 U.S. 952 (1997).............................................................. 14

Buck v. Davis, 580 U.S. 100 (2017) ............................ 9, 11, 12

City of Duluth v. Fond du Lac Band of Lake

Superior Chippewa, 785 F.3d 1207 (8th Cir. 2015) ..... 9, 14

Collins v. City of Wichita,

254 F.2d 837 (10th Cir. 1958) ............................................... 6

Cox v. Horn, 757 F.3d 113 (3d Cir. 2014),

cert. denied, 575 U.S. 929 (2015) ................................. 14, 15

Diaz v. Stephens, 731 F.3d 370 (5th Cir.),

cert. denied, 570 U.S. 946 (2013) ....................................... 15

FTC v. Credit Bureau Ctr., LLC,

937 F.3d 764 (7th Cir. 2019), cert. denied,

141 S. Ct. 194 (2020), and 141 S. Ct. 2614 (2021) ........... 3, 5

(III)

IV

Cases—Continued:

Page

FTC v. Freecom Commc’ns, Inc.,

401 F.3d 1192 (10th Cir. 2005) ............................................. 2

FTC v. Hewitt, 68 F.4th 461 (9th Cir. 2023) ................. 13, 16

FTC v. National Urological Grp., Inc.,

80 F.4th 1236 (11th Cir. 2023), cert. denied,

No. 73-704 (June 3, 2024) ................................................... 13

FTC v. Ross, 74 F.4th 186 (4th Cir. 2023),

cert. denied, 144 S. Ct. 693 (2024) ............................... 13, 15

FTC v. Simple Health Plans LLC,

58 F.4th 1322 (11th Cir. 2023) ........................................... 16

Federated Dep’t Stores, Inc. v. Moitie,

452 U.S. 394 (1981).............................................................. 11

Garza v. Idaho, 586 U.S. 232 (2019) ...................................... 8

George v. McDonough, 596 U.S. 740 (2022) ........................ 10

Gonzalez v. Crosby, 545 U.S. 524 (2005).......................... 9, 10

Harper v. Virginia Dep’t of Taxation,

509 U.S. 86 (1993) ............................................................... 10

Henson v. Fidelity National Financial, Inc.,

943 F.3d 434 (9th Cir. 2019) ............................................... 14

James B. Beam Distilling Co. v. Georgia,

501 U.S. 529 (1991).............................................................. 10

Kramer v. Gates, 481 F.3d 788 (D.C. Cir. 2007) ................. 14

Liljeberg v. Health Servs. Acquisition Corp.,

486 U.S. 847 (1988)................................................................ 9

Moses v. Joyner, 815 F.3d 163 (4th Cir. 2016),

cert. denied, 580 U.S. 1161 (2017) ..................................... 13

Pierce v. Cook & Co., 518 F.2d 720 (10th Cir. 1975),

cert. denied, 423 U.S. 1079 (1976) ....................................... 6

Ramirez v. United States,

799 F.3d 845 (7th Cir. 2015) ......................................... 14, 15

Reynoldsville Casket Co. v. Hyde,

514 U.S. 749 (1995).............................................................. 10

V

Cases—Continued:

Page

Rufo v. Inmates of Suffolk County Jail,

502 U.S. 367 (1992)................................................................ 9

United States v. Mezzanatto, 513 U.S. 196 (1995) ............... 8

Zagorski v. Mays, 907 F.3d 901 (6th Cir.),

cert. denied, 139 S. Ct. 450 (2018) ..................................... 13

Zimmerman v. Quinn,

744 F.2d 81 (10th Cir. 1984) ................................................. 9

Statutes, regulations, and rules:

Federal Trade Commission Act, 15 U.S.C. 41 et seq. .......... 2

15 U.S.C. 53(b) (§ 13(b)).......................................... 2, 3, 16

15 U.S.C. 57b (§ 19) ............................................... 2, 16, 17

15 U.S.C. 57b(a)(1) ............................................................ 2

15 U.S.C. 57b(b) ................................................................. 2

Restore Online Shoppers’ Confidence Act,

15 U.S.C. 8401 et seq. ............................................................ 2

15 U.S.C. 8404(a) ............................................................... 3

15 U.S.C. 6102(c) ...................................................................... 3

16 C.F.R. Pt. 310 ...................................................................... 2

Fed. R. Civ. P.:

Rule 60(b)(5) ...................................................................... 5

Rule 60(b)(6) .............................................. 4-7, 9-12, 14, 15

Miscellaneous:

12 James Wm. Moore et al., Moore’s Federal

Practice (3d ed. 2024) ................................................... 11, 13

In the Supreme Court of the United States

No. 23-1206

ELITE IT PARTNERS, INC., DBA ELITE IT HOME, ET AL.,

PETITIONERS

v.

FEDERAL TRADE COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-18a)

is reported at 91 F.4th 1042. The amended opinion and

order of the district court (Pet. App. 37a-54a) is reported at 653 F. Supp. 3d 1089. An earlier stipulated

order of the district court (Pet. App. 19a-36a) is not reported.

JURISDICTION

The judgment of the court of appeals was entered on

January 23, 2024. A petition for rehearing was denied

on March 21, 2024 (Pet. App. 55a-56a). The petition for

a writ of certiorari was filed on May 7, 2024. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. In February 2019, the Federal Trade Commission

(FTC or Commission) sued petitioners Elite IT Partners, Inc. and James Martinos for operating a technicalsupport telemarketing scam that preyed mostly on elderly Americans. Pet. App. 38a-39a. Petitioners’ telemarketers called consumers who had responded to an

online ad. Ibid. Based in part on fake diagnostic tests

purporting to show that the consumers’ computers were

infected with viruses, the telemarketers tricked the

consumers into signing up for costly and unnecessary

support services. Ibid. The FTC’s complaint alleged

that petitioners’ conduct had violated the Federal Trade

Commission Act (FTC Act), 15 U.S.C. 41 et seq.; the Restore Online Shoppers’ Confidence Act (ROSCA), 15

U.S.C. 8401 et seq.; and the FTC’s Telemarketing Sales

Rule, 16 C.F.R. Pt. 310. See Pet. App. 20a.

Section 13(b) of the FTC Act authorizes the Commission to sue in federal district court for a “permanent injunction” barring violations of any laws within the

agency’s purview. 15 U.S.C. 53(b). When the complaint

in this case was filed, the courts of appeals had uniformly held that Section 13(b) authorized district courts

to award equitable monetary relief to redress consumer

injury. See, e.g., FTC v. Freecom Commc’ns, Inc., 401

F.3d 1192, 1202 n.6 (10th Cir. 2005). Accordingly, the

FTC’s complaint sought both injunctive and monetary

relief under Section 13(b). Compl. ¶ 72. The complaint

also sought monetary relief under Section 19 of the FTC

Act, which authorizes the Commission to sue in district

court and to obtain a “refund of money” when a defendant has violated a rule that relates to unfair or deceptive

acts or practices and that was promulgated under the

FTC Act. 15 U.S.C. 57b(a)(1) and (b); see Compl. ¶ 73;

3

15 U.S.C. 8404(a) (providing that a violation of ROSCA

“shall be treated as a violation of a rule under [the FTC

Act] regarding unfair or deceptive acts or practices”);

15 U.S.C. 6102(c) (violation of a telemarketing rule

“shall be treated as a violation of a rule under [the FTC

Act] regarding unfair or deceptive acts or practices”).

The district court granted a temporary restraining

order to shut down petitioners’ scam. Pet. App. 39a.

The court also appointed a receiver to manage the business, and it froze petitioners’ assets to avoid dissipation

and to ensure that the assets would remain available for

consumer redress. Ibid. Petitioners later stipulated to

the entry of a preliminary injunction that maintained

the asset freeze and receivership but allowed petitioners to continue their business-to-business technicalsupport operations, which were not at issue in the

FTC’s complaint. Id. at 40a.

In August 2019, while this case was still pending in

the district court, the Seventh Circuit overruled its

prior precedent and held that Section 13(b) does not authorize equitable monetary relief, creating a circuit split

on that issue. See FTC v. Credit Bureau Ctr., LLC, 937

F.3d 764, 767 (2019), cert. denied, 141 S. Ct. 195 (2020),

and 141 S. Ct. 2614 (2021). In October 2019, a petition

for a writ of certiorari was filed in AMG Capital Management, LLC v. FTC, No. 19-508, asking this Court to

review whether Section 13(b) authorizes monetary relief.

In December 2019, petitioners (who were represented by counsel throughout the litigation) agreed to

entry of a stipulated judgment to resolve the FTC’s

claims against them. Pet. App. 19a-36a, 40a. The stipulated judgment contained several injunctive-relief provisions, including a permanent ban on selling technical-

4

support products to consumers (though not to businesses), that were designed to prevent petitioners from

engaging in the kind of unlawful conduct that was alleged in the complaint. Id. at 22a-25a. The stipulated

judgment also imposed a monetary judgment of approximately $13.5 million, which represented the FTC’s calculation of the total consumer losses that petitioners’

scam had caused. Id. at 25a. Under the terms of the

stipulated judgment, however, petitioners’ payment obligations were limited to their available assets (about

$355,000), based on their sworn representations regarding their ability to pay. Id. at 25a-27a. The stipulated

judgment provided that petitioners’ obligation to pay

the remainder of the monetary judgment would take effect if the district court later determined that petitioners had misrepresented their financial status. Id. at

27a.1

As part of the stipulated judgment, petitioners

agreed to “waive all rights to appeal or otherwise challenge or contest the validity of this Order.” Pet. App.

21a.

2. This Court granted the petition for a writ of certiorari in AMG and subsequently held that Section 13(b)

does not authorize monetary relief. See AMG Capital

Mgmt., LLC v. FTC, 593 U.S. 67, 75 (2021). Nearly 11

months after that decision, petitioners moved to vacate

the stipulated judgment in this case under Rule 60(b)(6)

of the Federal Rules of Civil Procedure, arguing that

Petitioners assert (Pet. 3-4) that more than $1 million obtained

from the liquidation of Elite IT’s assets was paid toward the judgment. That is incorrect. The FTC received a total of $355,138.80

from petitioners and from the receiver who had been appointed to

operate and wind down Elite IT. See D. Ct. Doc. 174-1, at ¶ 3 (Apr.

14, 2022).

1

5

“in light of the Supreme Court’s new precedent, extraordinary circumstances exist to vacate the judgment.” D. Ct. Doc. 169, at 1 (Mar. 17, 2022).2

The district court denied the motion. Pet. App. 37a54a. The court explained that a change in law, standing

alone, generally does not constitute an extraordinary

circumstance warranting relief under Rule 60(b)(6). Id.

at 53a. The court determined that petitioners had identified no “legal or factual basis to hold otherwise” in this

case. Ibid.; see id. at 50a-53a. The court therefore

found it unnecessary to address the FTC’s additional

argument that petitioners had given up the right to seek

Rule 60(b)(6) relief by agreeing to settle the FTC’s

claims. See id. at 50a n.69.

3. The court of appeals affirmed on two independent

grounds. Pet. App. 1a-18a.

First, the court of appeals held that petitioners had

waived their right to seek relief under Rule 60(b)(6) by

agreeing not to “ ‘challenge or contest the validity of ’ the

stipulated judgment.” Pet. App. 5a; see id. at 3a-9a.

The court explained that, in arguing that this Court’s

“opinion in AMG rendered the stipulated judgment invalid from the outset,” petitioners were asserting exactly the sort of post-judgment challenge that they had

waived their right to raise. Id. at 6a. The court emphasized that it was not unfair to hold petitioners to their

waiver, because petitioners “could have foreseen a

change in the case law” in light of the Seventh Circuit’s

decision in Credit Bureau Center LLC, supra, and the

petition for a writ of certiorari in AMG, which had been

Petitioners also sought relief under Rule 60(b)(5), but they did

not appeal the district court’s denial of relief under that provision.

See Pet. App. 2a n.1.

2

6

filed “before [petitioners] entered the stipulation.” Id.

at 7a.

Second, the court of appeals held that petitioners

would not have been entitled to relief “even if they

hadn’t waived their appellate arguments.” Pet. App. 9a;

see id. at 9a-18a. The court explained that a postjudgment change in decisional law, standing alone, is

generally insufficient to support relief under Rule

60(b)(6). See id. at 12a (discussing Collins v. City of

Wichita, 254 F.2d 837, 839 (10th Cir. 1958)). The court

acknowledged that it had recognized exceptions where

Rule 60(b)(6) relief was necessary to avoid “anomalies,”

but it concluded that petitioners did not come within any

of those exceptions. Id. at 14a; see id. at 13a-14a (discussing Pierce v. Cook & Co., 518 F.2d 720 (10th Cir.

1975) (en banc), cert. denied, 423 U.S. 1079 (1976), and

Adams v. Merrill Lynch, Pierce, Fenner & Smith, 888

F.2d 696, 697-698, 702 (10th Cir. 1989)). The court further held that petitioners had not offered any additional

arguments for vacatur beyond the intervening change

of law; rather, all of their arguments “depended on the

Supreme Court’s new opinion in AMG.” Id. at 16a; see

id. at 16a-18a. Accordingly, the court of appeals determined that “the district court didn’t abuse its discretion

in denying vacatur” under Rule 60(b)(6). Id. at 18a.

Judge Briscoe concurred to note that she would have

resolved the case based solely on petitioners’ waiver of

their right to challenge the stipulated judgment, and

that she would not have addressed the merits of petitioners’ Rule 60(b)(6) argument. Pet. App. 18a.

The court of appeals denied a petition for rehearing

without any noted dissent. Pet. App. 55a-56a.

7

ARGUMENT

Petitioners contend (Pet. 13-17) that the 2019 stipulated monetary judgment should be set aside under

Rule 60(b)(6) based solely on the subsequent change in

decisional law announced by this Court in AMG Capital

Management, LLC v. FTC, 593 U.S. 67, 75 (2021). As

the court of appeals recognized, petitioners unambiguously waived any right to bring such a challenge in settling the claims against them. This case accordingly

does not provide an appropriate vehicle in which to address arguments about the availability of relief under

Rule 60(b)(6).

In any event, the court of appeals correctly held that

the AMG decision, standing alone, would be an insufficient basis to set aside the stipulated judgment under

Rule 60(b)(6). That alternative holding does not conflict

with any decision of this Court or another court of appeals. Further review is not warranted.

1. Petitioners’ request for relief under Rule 60(b)(6)

fails at the threshold because petitioners expressly

waived the right to seek such relief.

In stipulating to the district court’s entry of judgment, petitioners agreed to “waive all rights to appeal

or otherwise challenge or contest the validity of this

Order”—i.e., the stipulated judgment. Pet. App. 21a;

see D. Ct. Doc. 144-1, at 17 (Nov. 21, 2019) (request

signed by petitioners asking district court to adopt stipulated judgment). That agreement not to “challenge or

contest the validity” of the stipulated judgment unambiguously encompasses petitioners’ current request for

Rule 60(b)(6) relief on the ground that the judgment

is invalid. See Pet. App. 5a-9a. And petitioners made

the agreement knowingly, while represented by counsel. See D. Ct. Docs. 22-25 (Mar. 6, 2019) (entries of

8

appearance by four separate attorneys on behalf of petitioners).3 The court of appeals therefore correctly recognized that the waiver is enforceable and bars petitioners from obtaining Rule 60(b)(6) relief. See Pet. App.

3a-9a; cf. United States v. Mezzanatto, 513 U.S. 196, 203

(1995) (observing that federal procedural rules “were

enacted against a background presumption that legal

rights generally * * * are subject to waiver by voluntary agreement of the parties”).

Petitioners identify no basis for second-guessing the

court of appeals’ waiver determination. They assert in

passing (Pet. 6, 15) that the court invoked the waiver

clause “sua sponte,” apparently suggesting that the

FTC had “waive[d] the waiver,” Garza v. Idaho, 586

U.S. 232, 239 (2019). That assertion is incorrect. “[T]he

parties briefed the impact of the waiver clause both in

district court and on appeal.” Pet. App. 4a. The court

of appeals therefore committed no error in addressing

petitioners’ waiver.

Petitioners also observe (Pet. 16) that “Rule 60(b)

applies to consent orders just as much as it does to litigated orders.” But the court of appeals did not suggest

otherwise. In holding that petitioners could not pursue

their current challenges to the stipulated judgment, the

court relied not simply on the judgment’s status as a

consent judgment, but on the fact that petitioners had

specifically “waived all rights to . . . challenge or contest” the judgment’s validity. Pet. App. 3a (brackets

Petitioners observe that the district court denied a motion by

petitioner Martinos to release assets for use in paying petitioners’

counsel. See Pet. 3 (citing D. Ct. Doc. 70 (Apr. 5, 2019)). The court

did so, however, only after determining that “the release of funds

[wa]s unnecessary” because Martinos had access to other funds that

he could use to pay for counsel. D. Ct. Doc. 70, at 4.

3

9

and citation omitted). None of the decisions that petitioners identify involved such a waiver or suggested

that one would be unenforceable. See Pet. 16 (discussing Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367

(1992); City of Duluth v. Fond du Lac Band of Lake Superior Chippewa, 785 F.3d 1207 (8th Cir. 2015); and

Zimmerman v. Quinn, 744 F.2d 81 (10th Cir. 1984)).

And petitioners offer no other argument for disregarding their knowing waiver of the right to challenge the

stipulated judgment.

2. Because petitioners’ waiver independently bars

their claim, this case does not provide an appropriate

vehicle in which to address the availability of “Rule60(b)(6) relief based on a post-judgment change in decisional law.” Pet. i. In any event, the court of appeals

correctly held that, even if petitioners had not waived

their right to challenge the stipulated judgment at issue

here, they would not be entitled to relief under Rule

60(b)(6). That alternative holding does not conflict with

any decision of this Court or another court of appeals.

a. Rule 60(b)(6) allows a district court to relieve a

party from a final judgment for “any * * * reason that

justifies relief ” other than the more specific circumstances set forth in clauses (1) through (5). Fed. R. Civ.

P. 60(b)(6); see Gonzalez v. Crosby, 545 U.S. 524, 528

n.2, 529 (2005); Liljeberg v. Health Servs. Acquisition

Corp., 486 U.S. 847, 863 n.11 (1988) (explaining that

“clause (6) and clauses (1) through (5) are mutually exclusive”). To obtain relief under this “catchall category,” Buck v. Davis, 580 U.S. 100, 112 (2017), a movant

must “show ‘extraordinary circumstances’ justifying

the reopening of a final judgment,” Gonzalez, 545 U.S.

at 535 (citation omitted).

10

In Gonzalez, this Court affirmed the denial of a request for Rule 60(b)(6) relief that was based on a change

in decisional law, explaining that “[t]he District Court’s

interpretation was by all appearances correct under the

Eleventh Circuit’s then-prevailing interpretation” of

the relevant statute. 545 U.S. at 536. The Court found

it “hardly extraordinary that subsequently, after petitioner’s case was no longer pending, this Court arrived

at a different interpretation.” Ibid. Gonzalez thus

made clear that a change in decisional law by this Court,

standing alone, is generally not an extraordinary circumstance that warrants relief under Rule 60(b)(6). Cf.

Agostini v. Felton, 521 U.S. 203, 239 (1997) (“Intervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6).”)

That understanding is consistent with other decisions holding that new judicial decisions generally

should not be given retroactive effect in closed cases.

When the Court “applies a rule of federal law to the parties before it, that rule is the controlling interpretation

of federal law and must be given full retroactive effect

in all cases still open on direct review.” Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97 (1993) (emphasis added). In “cases already closed,” by contrast,

“[n]ew legal principles” ordinarily do “not apply.”

Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 758

(1995); see George v. McDonough, 596 U.S. 740, 751

(2022) (noting the “general rule” that a “ ‘new interpretation of a statute can only retroactively affect decisions

still open on direct review’ ”) (brackets and citation

omitted). That sharp line reflects the Court’s longstanding recognition that “retroactivity in civil cases

must be limited by the need for finality.” James B.

11

Beam Distilling Co. v. Georgia, 501 U.S. 529, 541 (1991)

(opinion of Souter, J.). “[P]ublic policy dictates that

there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.” Federated Dep’t

Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1981) (citation

omitted). Accordingly, something more than a change

in decisional law is generally needed to justify setting

aside a final judgment.

That does not mean that a change in decisional law is

never relevant to a Rule 60(b)(6) analysis. Rather, “a

change in decisional law may be considered on a Rule

60(b)(6) motion when combined with other factors that

might warrant relief, or when the combination of other

factors plus the change in decisional law warrant relief.”

12 James Wm. Moore et al., Moore’s Federal Practice

§ 60.48, at 60-203 (3d ed. 2024) (Moore’s Federal Practice).

This Court’s decision in Buck illustrates the kind of

factors that may operate in combination with a change

in precedent to justify Rule 60(b)(6) relief. Duane Buck

was sentenced to death after his attorney called an expert witness who testified that Buck was statistically

more likely to act violently because of his race. Buck,

580 U.S. at 104, 107-108. After a district court denied

Buck’s petition for a writ of habeas corpus, Buck sought

to reopen the proceeding under Rule 60(b)(6), based on

a change in decisional law in combination with other factors. Id. at 104-105. In holding that Buck was entitled

to that Rule 60(b)(6) relief, this Court treated the relevant change in law as a necessary “precondition,” id. at

126, while emphasizing that it was the other factors that

made the case “extraordinary,” id. at 124. See id. at

12

123-127. The Court explained that disparate punishments based on race are a “disturbing departure from a

basic premise of our criminal justice system” and “ ‘especially pernicious.’ ” Id. at 123-124 (citation omitted).

The Court observed that “[r]elying on race to impose a

criminal sanction * * * injures not just the defendant,

but ‘the law as an institution, . . . the community at

large, and . . . the democratic ideal reflected in the processes of our courts’ ”—“precisely” the sorts of “concerns” this Court has “identified as supporting relief

under Rule 60(b)(6).” Id. at 124 (citation omitted). That

the State had taken the “remarkable step[]” of confessing error in five other capital cases involving similar testimony by the same expert further showed the extraordinary nature of the case. Id. at 125.

The decision below accords with those principles.

Consistent with Gonzalez, the court of appeals held that

a change in decisional law standing alone is generally

insufficient to warrant relief under Rule 60(b)(6). Pet.

App. 12a. The court recognized the existence of exceptions, however, including when the change in precedent

arises in a factually related case. Ibid. In that situation,

relief under Rule 60(b)(6) may be necessary to “ensure

consistency.” Id. at 13a. But no such concerns were

present here. And because petitioners relied solely on

the change of law announced in AMG, see id. at 16a-18a,

the court of appeals had no occasion to address what

other factors in combination with a change in decisional

law might warrant Rule 60(b)(6) relief.

b. Contrary to petitioners’ contention (Pet. 7-13),

the decision below does not conflict with any decision of

another court of appeals.

Only two other courts of appeals—the Fourth and

Ninth Circuits—have addressed the precise question at

13

issue here, i.e., whether this Court’s decision in AMG

warrants Rule 60(b)(6) relief from a prior final judgment imposing monetary sanctions under Section 13(b).

Petitioners acknowledge (Pet. 9) that the Fourth Circuit’s decision in FTC v. Ross, 74 F.4th 186, 194-195

(2023), cert. denied, 144 S. Ct. 693 (2024), is consistent

with the decision below. They argue (Pet. 13), however,

that Ninth Circuit precedent is to the contrary. That is

incorrect. The Ninth Circuit has recognized that,

standing alone, the change of law announced in AMG is

an insufficient basis for granting relief from a prior final

judgment that awarded monetary relief under Section

13(b). See FTC v. Hewitt, 68 F.4th 461, 467-470 (2023).

That is fully consistent with the decision below. 4

Nor does the court of appeals’ decision here implicate any broader conflict regarding the proper application of Rule 60(b)(6). “[M]ost courts have agreed that

changes in decisional law should not, by themselves, be

the basis for relief from judgments that have no prospective application.” Moore’s Federal Practice § 60.48,

at 60-201; see, e.g., Pet. App. 12a-14a; Zagorski v. Mays,

907 F.3d 901, 905 (6th Cir.), cert. denied, 139 S. Ct. 450

(2018); Moses v. Joyner, 815 F.3d 163, 168 (4th Cir.

2016), cert. denied, 580 U.S. 1161 (2017); Arthur v.

Petitioners assert (Pet. 18-19) that the petition for a writ of certiorari in Hi-Tech Pharmaceuticals, Inc. v. FTC, No. 23-704, which

this Court denied on June 3, 2024, presented the same Rule 60(b)(6)

question that petitioners raise here. That is incorrect. The Eleventh Circuit’s decision in Hi-Tech addressed contempt sanctions imposed for violations of an injunction that had been properly entered

under the FTC Act. See FTC v. National Urological Grp., Inc., 80

F.4th 1236, 1244 (2023), cert. denied, No. 23-704 (June 3, 2024); see

also Gov’t Br. in Opp. at 15-16, Hi-Tech Pharms., Inc. v. FTC, No.

23-704 (Apr. 24, 2024). No contempt sanctions are at issue in this

case.

4

14

Thomas, 739 F.3d 611, 631 (11th Cir.), cert. denied, 574

U.S. 821 (2014); Adams v. Thaler, 679 F.3d 312, 319 (5th

Cir. 2012); Kramer v. Gates, 481 F.3d 788, 792 (D.C. Cir.

2007); see also Pet. 9-11.

Petitioners identify (Pet. 11-13) other court of appeals decisions that “have not foreclosed the possibility

that a change in controlling precedent, even standing

alone, might give reason for 60(b)(6) relief. ” Cox v.

Horn, 757 F.3d 113, 121 (3d Cir. 2014), cert. denied, 575

U.S. 929 (2015). But those courts acknowledge that a

change in law would “rarely,” if ever, be sufficient by

itself to warrant such relief. Ibid. (emphasis omitted).

In determining whether relief under Rule 60(b)(6) is appropriate in particular cases, they have consequently

relied on a “flexible, multifactor approach” that considers post-judgment changes in law along with other relevant factors. Id. at 122.5

See Henson v. Fidelity Nat’l Fin., Inc., 943 F.3d 434, 444 (9th

Cir. 2019) (observing that “a change in the controlling law can—but

does not always—provide a sufficient basis for granting relief under

Rule 60(b)(6),” and stating that whether such relief is warranted depends on a “ ‘case-by-case inquiry’ ” in which “ ‘the trial court [must]

intensively balance numerous factors’ ”); Ramirez v. United States,

799 F.3d 845, 850-851 (7th Cir. 2015) (rejecting “the absolute position * * * that intervening changes in the law can never support

relief under Rule 60(b)(6),” while stating that a court must “examine

all of the circumstances” in order to determine whether relief is warranted) (emphasis omitted); City of Duluth v. Fond du Lac Band of

Lake Superior Chippewa, 785 F.3d 1207, 1210 (8th Cir. 2015) (pointing to “[a] change in the law” as one of “several factors that the district court should consider” in deciding whether to grant Rule

60(b)(6) relief); Biggins v. Hazen Paper Co., 111 F.3d 205, 212 (1st

Cir.) (“[A]bsent extraordinary circumstances, we would think it dubious practice to reopen a final judgment under Rule 60(b)(6) solely

because of later precedent pointing in a different direction.”), cert.

denied, 522 U.S. 952 (1997).

5

15

Any minor differences among the various circuits’

articulations of the Rule 60(b)(6) standard appear to

have had no meaningful practical effect on how Rule

60(b)(6) is applied in practice. See Cox, 757 F.3d at 121

(acknowledging that “there is not much daylight between the ‘never’ position * * * and the ‘rarely’ position”); Ramirez v. United States, 799 F.3d 845, 851 (7th

Cir. 2015) (noting that the Seventh Circuit’s position

“may not be inconsistent with that of the Fifth Circuit”).

In particular, petitioners cite no case in which a court of

appeals has actually granted Rule 60(b)(6) relief based

solely on a change in decisional law. And conversely,

petitioners cite no case in which a court of appeals has

held that a change in decisional law may not be considered in combination with other factors as part of a Rule

60(b)(6) analysis. In fact, courts stating that a change

in decisional law standing alone is insufficient often

have gone on to consider other relevant circumstances.

See, e.g., Ross, 74 F.4th at 194-195; Diaz v. Stephens,

731 F.3d 370, 377 (5th Cir.), cert. denied, 570 U.S. 946

(2013). Thus, under both approaches, the analysis is essentially the same: A change in decisional law by itself

will not justify Rule 60(b)(6) relief, but it may be sufficient in combination with other equitable factors.

Moreover, even if there were a genuine conflict

among the circuits concerning the proper application of

Rule 60(b)(6), petitioners identify no court of appeals

that would require Rule 60(b)(6) relief in this case. Petitioners assert (Pet. 13) that the Ninth Circuit is one of

the courts that have purportedly adopted their preferred view of Rule 60(b)(6). Yet as discussed above,

see pp. 12-13, supra, the Ninth Circuit has held that the

specific change in decisional law at issue here—this

Court’s decision in AMG—does not require re-opening

16

earlier equitable monetary judgments entered under

Section 13(b). See Hewitt, 68 F.4th at 467-470.

Two additional factors also weigh strongly against

Rule 60(b)(6) relief in this case. First, petitioners chose

to accept the stipulated judgment here at a time when

the circuits were split on the availability of monetary

relief under Section 13(b) and a petition for a writ of

certiorari in AMG was pending before this Court. The

stipulated judgment incorporated a substantial concession by the FTC, moreover, because one term of the

agreement provided that petitioners’ payment obligations would be limited to approximately $355,000 unless

the district court subsequently determined that petitioners had misrepresented their financial status. See

p. 4, supra. Having made the strategic choice to settle

notwithstanding the pendency of the issue in this Court,

and having obtained a substantial benefit by entering

into that agreement, petitioners should not now be permitted to argue that the Court’s decision in AMG entitles them to withdraw their consent and scuttle the entire settlement.

Second, the Commission asserted claims for monetary relief against petitioners not only under Section

13(b) of the FTC Act, but also under Section 19. See

Compl. ¶¶ 72-73. Where it applies, Section 19 authorizes courts to order “the refund of money” or “the payment of damages.” 15 U.S.C. 57b(b); see FTC v. Simple

Health Plans LLC, 58 F.4th 1322, 1329-1330 (11th Cir.

2023). In AMG, this Court emphasized that “[n]othing

[the Court] sa[id]” in that decision “prohibits the Commission from using its authority under * * * [Section]

19 to obtain restitution on behalf of consumers.” 593

U.S. at 82. Thus, even if the Court had decided AMG

before the district court entered final judgment in this

17

case, the FTC could still have obtained monetary relief

under Section 19.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ANISHA S. DASGUPTA

General Counsel

MATTHEW HOFFMAN

MICHAEL BERGMAN

Counsel

Federal Trade Commission

JULY 2024

ELIZABETH B. PRELOGAR

Solicitor General