United States Ex Rel. Federal Trade Commission v. Business Recovery Services LLC

*189 MEMORANDUM *

Business Recovery Services is a telemarketing company, owned by Brian Hes-sler (together “BRS”), that sells recovery kits and contingency services to people who previously lost money in telemarketing scams. The United States sued BRS for, among other things, violating 16 C.F.R. § 310.4 (a)(8), which prohibits a telemarketer from requesting payment for a good or service represented to recover money lost in a previous telemarketing transaction until seven days after the person has actually recovered the money. The United States sought injunctive relief. The district court granted a preliminary injunction prohibiting BRS from selling their recovery kits for an up-front fee in violation of § 310.4(a)(3). BRS did not stop charging its customers an up-front fee, but had its customers sign a form stating they were past or present business owners in an attempt to qualify for the business-to-business exemption in 16 C.F.R. § 310.6 (b)(7). The United States moved to hold BRS in contempt for violating the injunction, and, in response, BRS moved to modify the preliminary injunction. The district court denied BRS’s motion and held BRS in civil contempt. BRS appeals.

We do…

concurring.

I concur in the memorandum disposition save I think it unnecessary to comment on whether the business-to-business exemption of 16 C.F.R. § 310.6 could apply here. The panel’s view that it is doubtful the business-to-business exemption can be applied does not comport with my interpretation of the statute. But, just as I think it unnecessary for the panel to intimate its view, I think it unnecessary to explain mine.

FILED

NOT FOR PUBLICATION JUN 20 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, on No. 11-17677 behalf of the Federal Trade Commission, D.C. No. 2:11-cv-00390-JAT Plaintiff - Appellee,

v. MEMORANDUM*

BUSINESS RECOVERY SERVICES

LLC; BRIAN HESSLER, individually and as owner, officer, or manager of Business Recovery Services LLC,

Defendants - Appellants.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding

Argued and Submitted June 15, 2012 San Francisco, California

Before: D.W. NELSON, GOULD, and BEA, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Business Recovery Services is a telemarketing company, owned by Brian

Hessler (together “BRS”), that sells recovery kits and contingency services to

people who previously lost money in telemarketing scams. The United States sued

BRS for, among other things, violating 16…