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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13481
Non-Argument Calendar
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D.C. Docket No. 2:17-cv-00228-UA-MRM
FEDERAL TRADE COMMISSION,
STATE OF FLORIDA,
Plaintiffs - Appellees,
versus
VYLAH TEC LLC,
a limited liability company,
d.b.a. VTEC Support,
EXPRESS TECH HELP LLC,
a limited liability company, et al.,
Defendants - Appellants.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 8, 2018)
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Before WILSON, JORDAN and BLACK, Circuit Judges.
PER CURIAM:
The Federal Trade Commission and the State of Florida (collectively,
Appellees) sued Vylah Tec LLC (Vtec), Express Tech Help LLC (Express Tech),
Tech Crew Support LLC (Tech Crew), Angelo Cupo, Robert Cupo, and Dennis
Cupo (collectively, Appellants), alleging violations of the Federal Trade
Commission Act (FTCA), 15 U.S.C. §§ 41–58, and the Florida Deceptive and
Unfair Trade Practices Act (FDUTPA), Fla. Stat. §§ 501.201–501.213. On appeal,
Appellants challenge the district court’s imposition of a preliminary injunction.
After review,1 we vacate the preliminary injunction to the extent it froze Dennis’s
assets and assets held jointly by Robert and his wife, Olga Cupo, remand for
further findings of fact and conclusions of law as to those issues, and affirm as to
the remainder.
I. BACKGROUND
Vtec, Express Tech, and Tech Crew are small businesses that provide
technical support and sell computer antivirus software. Angelo is the chief
executive officer of Vtec and a manager of Tech Crew. Robert is a manager of
Vtec, an owner, manager, director, and officer of Tech Crew, and a member of
1
We review for abuse of discretion the district court’s grant of a preliminary injunction.
Cumulus Media, Inc. v. Clear Channel Commc’ns, Inc., 304 F.3d 1167, 1171 (11th Cir. 2002).
We will not disturb the district court’s factual findings unless they are clearly erroneous. Id.
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Express Tech. Dennis was listed as a manager of Express Tech when it was first
organized, and he previously assisted with general operations for a technical
support business started by Robert and Angelo.
In 2017, Appellees filed a complaint alleging Appellants had deceptively
marketed and sold technical support services and software to consumers, in
violation of the FTCA and FDUTPA. Appellees also filed an ex parte motion for a
temporary restraining order (TRO). The district court granted Appellees’ motion
and entered a TRO freezing Appellants’ assets and assets held for their benefit.
About one month later, the district court granted a preliminary injunction. In
its order, the court noted the issue of whether Appellees had made the requisite
showing to obtain an injunction was not before it, as the parties had effectively
stipulated to an injunction. The court issued a preliminary injunction that, among
other things, continued the freeze of most of Appellants’ assets and assets held for
their benefit. This appeal followed. 2
II. DISCUSSION
As a preliminary matter, Appellants assert the motion for a TRO should have
been denied, citing alleged deficiencies in Appellees’ evidence. Appellants appear
to raise this argument as a reason why the preliminary injunction should be vacated
2
We have jurisdiction over this appeal. See McDonald’s Corp. v. Robertson, 147 F.3d
1301, 1310 n.7 (11th Cir. 1998).
3
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in its entirety, rather than as a challenge to the issuance of the TRO. We address
Appellants’ challenge to the preliminary injunction below. To the extent
Appellants intend to challenge the TRO itself, that order is not appealable.
Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982) (“[A]s a general
rule a temporary restraining order is not appealable.”).
Appellants contend vacatur of the entire preliminary injunction is warranted
because Appellees did not meet their burden of proof and the district court failed to
analyze whether Appellees made the requisite showing. Appellants waived this
argument by effectively stipulating to the imposition of a preliminary injunction.
In the district court, Appellants stated they were “agreeable” to an injunction, that
they did not “overtly object[ ]” to an injunction, and that they were not arguing no
injunction should issue. In fact, Appellants asked—twice—that the district court
grant an injunction. By requesting terms different from those the district court
actually imposed, Appellants preserved a challenge to the scope of the injunction.
But Appellants cannot, having asked the district court for an injunction, assert on
appeal that the district court erred by imposing one. 3 See SEC v. Smyth, 420 F.3d
3
This case is distinguishable from Four Seasons Hotels & Resorts, B.V. v. Consorcio
Barr, S.A., 320 F.3d 1205 (11th Cir. 2003). In Four Seasons, the defendants told the district
court that if the court chose to prohibit them from “attempting to or gaining unauthorized access
to the plaintiff’s network, frankly, [they] would have no problem with that because [they were]
not doing it . . . .” Id. at 1209 n.2 (quotation omitted). We determined the defendants had not
waived their challenge to the subsequently imposed injunction because their statements
“constitute[d] substantive denials of wrongdoing, rather than acquiescence to the injunction.” Id.
Here, by contrast, Appellants asked the district court to impose an injunction. It is one thing to
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1225, 1233 n.14 (11th Cir. 2005) (noting a defendant could not challenge the
provisions of an injunction because he waived his right to appeal the injunction’s
terms).
Next, Appellants assert the district court failed to hold an evidentiary
hearing and, therefore, lacked a sufficient basis upon which to make factual
findings. This argument is belied by the record. On May 30, 2017, the district
court conducted a hearing during which both parties had the opportunity to present
arguments and educate the court regarding the complex issues involved in the case.
See Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205,
1212 (11th Cir. 2003) (requiring such a hearing “where . . . the material facts
underlying the complaint and the injunction are disputed”). Appellants had ample
opportunity to present evidence before, during, and after the hearing. Indeed,
Appellants electronically filed 184 pages of exhibits between May 21, 2017, and
June 1, 2017, and they submitted additional evidence at the hearing. In its order,
entered June 4, 2017, the district court indicated it had reviewed and considered all
of the evidence and the parties’ subsequent filings. Thus, Appellants’ assertion
that the district court failed to hold an evidentiary hearing is baseless. To the
extent Appellants contend the district court should have required Appellees to
indicate you have “no problem with” an injunction prohibiting you from engaging in activity you
deny doing. It is another to repeatedly request such an injunction.
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present live testimony, they have not provided, nor have we found, any binding
authority to that effect. 4
Finally, Appellants challenge several elements of the asset freeze included in
the injunction. Appellants first contend the district court erred by freezing an
account belonging to Dennis’s employer, who is not a party in this case, as
Appellees did not establish any nexus between the alleged consumer harm and the
employer’s accounts or operations. Likewise, Appellants challenge the freeze on
Dennis’s assets, alleging he is entirely uninvolved in the companies’ business, and
that Appellees did not meet their burden to show a connection between Dennis’s
assets and the alleged harm to consumers. Appellants also assert the freeze on
assets held jointly by Robert and Olga, a non-party to the case, is improper because
it is punitive as to Olga.
Appellants waived their challenge to the freeze on the employer’s account.
Before the district court, Appellants stated they were agreeable to a preliminary
injunction that provided the necessary funds to account for Robert’s, Angelo’s, and
Dennis’s personal expenses, among other things. At the preliminary injunction
hearing, Appellants noted that their proposed injunction released $100,000 to
restart operations and provide for their personal expenses. Appellants contended it
4
Notably, the district court stated four weeks prior to the hearing that live testimony
would be heard “only on further order of this [c]ourt or on motion filed with the [c]ourt . . . .”
Appellants did not move for leave to question Appellees’ witnesses at the hearing, nor did they
assert Appellees should be required to present live testimony.
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would be inequitable to force Robert, Angelo, and Dennis into bankruptcy due to
the asset freeze, and they particularly urged the court to unfreeze Dennis’s assets.
Because Appellants failed to assert before the district court that Dennis’s
employer’s account should be unfrozen, we decline to consider this argument on
appeal. See Ramirez v. Sec’y, U.S. Dep’t of Transp., 686 F.3d 1239, 1249 (11th
Cir. 2012) (“[W]e will generally refuse to consider arguments raised for the first
time on appeal.”).
Appellants did, however, preserve their challenges to the freezes on
Dennis’s assets and Olga’s and Robert’s jointly held assets. The district court did
not make sufficient factual findings to support freezing these assets. While the
court stated in the TRO that Appellees had “sufficiently shown that . . . Dennis . . .
[has] engaged in and [is] likely to engage in acts and practices that violate [the
FTCA and FDUTPA],” the court did not find that Dennis gained anything from the
allegedly unlawful practices. See SEC v. Contorinis, 743 F.3d 296, 301 (11th Cir.
2014) (“Because disgorgement does not serve a punitive function, the
disgorgement amount [in a securities law violation proceeding] may not exceed the
amount obtained through the wrongdoing.”); SEC v. ETS Payphones, Inc., 408
F.3d 727, 734 (11th Cir. 2005) (noting an asset freeze may be “justified as a means
of preserving funds for . . . disgorg[e]ment”). Similarly, the district court made no
findings as to Olga’s involvement, if any, in the alleged scheme, nor did it explain
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why assets she holds jointly with Robert are subject to a freeze regardless of
whether she was involved. See ETS Payphones, 408 F.3d at 735 (stating that the
funds subject to a freeze must be “a reasonable approximation of a defendant’s ill-
gotten gains” (quotation omitted)). Such factual findings were needed to justify
including the freezes on Dennis’s assets and the jointly held assets within the scope
of the injunction. Given the dearth of factual findings on these issues, we vacate
the order granting the preliminary injunction to the extent it froze Dennis’s assets
and assets held jointly by Robert and Olga. 5 See Doe v. Dekalb Cty. Sch. Dist.,
145 F.3d 1441, 1446 (11th Cir. 1998) (vacating an injunction because the district
court’s factual findings were incomplete and its reasoning was unclear).
III. CONCLUSION
In light of the foregoing, the district court’s order granting a preliminary
injunction is VACATED to the extent it froze Dennis’s assets and assets held
jointly by Robert and Olga, the case is REMANDED to the district court for
further factual findings and conclusions of law regarding these freezes, and the
remainder of the the district court’s order is AFFIRMED.
AFFIRMED IN PART, VACATED IN PART and REMANDED.
5
In their reply brief, Appellants state their intention to challenge the asset freeze in its
entirety on appeal. We do not consider whether the district court properly froze any assets other
than those discussed above because Appellants failed to raise on appeal any specific arguments
regarding the freeze of other assets. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678,
681 (11th Cir. 2014).
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