The Federal Trade Commission (the "FTC" or the "government") brought this action against thirteen corporate entities (the "Corporate Defendants") and defendants-appellants Mark Briandi ("Briandi") and William Moses ("Moses") alleging that the defendants' combined debt collection violated the Federal Trade Commission Act ("FTCA"),
Briandi and Moses appealed. Moses did not file a brief, and, there being no valid excuse proffered therefor, we dismiss his appeal pursuant to our Local Rule 31.2(d).
Briandi does not contest the district court's conclusion that the Corporate Defendants violated the FTCA and FDCPA. He argues instead that the court erred by concluding that he is personally liable for the violations. He also contends that the district court erred by setting the measure of equitable monetary relief as the total proceeds of the debt collection enterprise. For the reasons set forth below, we agree with the district court on both issues, and, therefore, affirm its judgment.
BACKGROUND
General Factual Background
In 2009, Briandi and Moses founded, and thereafter co-owned and co-directed, the first of the Corporate Defendants, Federal Recoveries, LLC. Over the next few years, Briandi or Moses incorporated twelve other Corporate Defendants, which were part of a single debt collection enterprise. The Corporate Defendants' business consisted largely of collecting payday loan debts,
At the Corporate Defendants' behest, nearly all of their approximately twenty-five employee-debt collectors would routinely contact debtors by telephone and falsely identify themselves as "processors," "officers," or "investigators" from a "fraud unit" or "fraud division," then accuse debtors of check fraud or a related crime and threaten them with criminal prosecution if they did not pay their debts. On some occasions, collectors called friends, family members, employers, or co-workers of debtors, telling them that the debtors owed a debt, had committed a crime in failing to pay it, and faced possible legal repercussions. When debtors or other interested parties sought further information about the debt, collectors typically refused to provide it.
After receiving a litany of consumer complaints about these activities, the Office *303of the New York State Attorney General began investigating the Corporate Defendants' businesses. On February 3, 2013, in an attempt to terminate the investigation, Briandi and Moses executed, on behalf of themselves and the relevant Corporate Defendants, a written "Assurance of Discontinuance" (the "AOD") with the State Attorney General. While not admitting fault, Briandi and Moses conceded in the AOD that the Corporate Defendants were subject to specified federal and state laws, including the FDCPA. Additionally, they agreed to dissolve some of the Corporate Defendants. And they stated that they would advise the New York State Attorney General's Office if any of the Corporate Defendants changed their principal place of business; if the individual defendants incorporated a new corporation or business entity; or if any of the Corporate Defendants did business under a new name. On May 8, 2013, Briandi and Moses also executed an affidavit in which they represented that they had implemented procedures - including the hiring of a "compliance officer" - to ensure that the Corporate Defendants met the requirements of the FDCPA.
Shortly after the AOD became effective, though, and without informing the Attorney General's Office, Briandi and Moses incorporated new Corporate Defendants, some in other states. And the Corporate Defendants continued to engage in the forsworn practices.
Briandi's Corporate Responsibilities
Briandi was a co-founder, co-owner, co-director, and general manager of all but perhaps one of the Corporate Defendants. He maintained a personal office within the Corporate Defendants' East Amherst, New York, office and a desk in the "collection call" area from which dunning calls were made by the companies' employees. Briandi had signature authority with respect to the companies' bank accounts, and in the more than four years between February 10, 2010, and February 26, 2014, received approximately $1.3 million in compensation from the Corporate Defendants.
Briandi's principal responsibilities for the companies included signing their checks; managing the banking side of their businesses; handling personnel matters, such as hiring and firing employees; maintaining the companies' phone systems and websites; receiving consumer payments; and - along with Moses, who was in charge of collections - operating the entity, bearing the mellifluous name "Flowing Streams," which purchased consumer debts. Prior to 2013, Briandi would himself also occasionally make collection calls on behalf of the Corporate Defendants.
After the instant litigation began, Briandi asserted in a deposition taken by FTC counsel on April 15, 2015, that, beginning in March of 2013, he had a diminished involvement with the Corporate Defendants. He testified that this resulted from his decision to become a pastor, which led to his spending much of his work days praying in his office and taking online bible classes. Although Briandi acknowledged that he continued to review corporate bank accounts from time to time, speak to managers, and occasionally take "hostile" consumer calls, Briandi Dep., April 15, 2015, at 65-66, 72; he denied having continued to visit his desk on the collection floor more than "once" or "twice" a day,
Procedural History
On February 24, 2014, the FTC filed a complaint against Briandi, Moses, and the Corporate Defendants in the United States District Court for the Western District of New York. It alleged two violations of Section 5(a) of the FTCA,
On June 17, 2014, Briandi and Moses asked the district court for one year in which to conduct discovery. A magistrate judge granted their request but noted that "no extensions of this order will be entertained." Dkt. No. 67.
Meanwhile, the FTC subpoenaed and received copies of a variety of scripts used by the Corporate Defendants' employees to make demand telephone calls, recordings of telephone calls between various collectors and consumers, and many consumer complaints and declarations detailing and challenging the companies' practices. The FTC also submitted interrogatories to the defendants and took oral depositions of Briandi and Moses. For their parts, though, Briandi, Moses, and the Corporate Defendants engaged in no discovery. And Briandi failed to answer interrogatories propounded by the FTC until after the discovery deadline had passed, and then only as part of his attempt to oppose the FTC's motion for summary judgment.
The FTC moved for summary judgment on August 27, 2015. The motion included a request for $10,852,396 in monetary relief, for which, the FTC asserted, all of the defendants, include Briandi and Moses, should be jointly and severally liable. That figure was based on "the gross total of consumer funds deposited by merchant processors" found "in the [d]efendants' settlement accounts." Second Suppl. Decl. of FTC Investigator Michael B. Goldstein ¶ 26 (July 24, 2015).
Briandi did not dispute the allegations that the Corporate Defendants engaged in wrongdoing. He denied, however, that he could be held individually liable for the Corporate Defendants' actions. He based that argument largely on his contention that he did not control the Corporate Defendants, did not participate in their activities, and lacked any knowledge of their alleged wrongdoing. Briandi also asserted that the government's requested relief vastly exceeded the Corporate Defendants' unlawful gains.
The District Court's Decision
On April 13, 2016, Michael J. Roemer, the magistrate judge to whom the matter had by then been referred by the district court "for all pre-trial matters, including preparation of a report and recommendation on dispositive motions," issued a report and recommendation concluding that the FTC's motion for summary judgment should be granted. FTC v. Fed. Check Processing, Inc. , No. 14-CV-122-WMS-MJR,
Second, the magistrate judge concluded that the FTC's disgorgement request "reasonably approximate[d] the [C]orporate [D]efendants' unjust gains." Id. at *16,
On October 12, 2016, the district court adopted Magistrate Judge Roemer's report and recommendation in its entirety and entered judgment in the government's favor. Fed. Trade Comm'n v. Fed. Check Processing, Inc ., No. 14-CV-122S,
DISCUSSION
Briandi makes three principal arguments on appeal. First, he contends that he should have been given time to conduct discovery. Second, he argues, based on the information contained in his deposition, that there were material facts at issue as to whether he could be held individually liable for the actions of the Corporate Defendants. He contends that these factual issues rendered summary judgment for the FTC improper. Finally, he asserts that the disgorgement amount adopted by the district court was grossly excessive. For the reasons that follow, we disagree with each of these contentions.
I. Standard of Review
A district court's decision on a party's request for "more time to conduct discovery ... is subject to reversal only if [the district court] abused its discretion." Paddington Partners v. Bouchard ,
We review the "district court's decision to grant summary judgment de novo , resolving all ambiguities and drawing all permissible factual inferences in favor of the party against whom summary judgment is sought." Burg v. Gosselin ,
II. Additional Discovery
Briandi contends that the district court wrongly denied an extension to the *306one-year discovery period already provided. But Briandi has waived this argument. Federal Rule of Civil Procedure 56(d) provides that a party opposing summary judgment based on incomplete discovery must file an affidavit explaining why such discovery is necessary. See
Also, it was Briandi and Moses who asked for the approximately one-year discovery period, and then chose, for unstated reasons, not to conduct any discovery at all during that period. Briandi now asserts that he did not understand the "circumstances of [his] position." Briandi Br. 22. However, he identifies no standard upon which to judge whether or not that is the case. Nor does he explain how the "circumstances of his position" were unclear or confusing, or provide any authority for the proposition that, if they were, he was therefore entitled to an extension on the lengthy period the court provided for discovery.
III. Briandi's Personal Liability
Briandi argues that the district court erred in granting summary judgment against him because genuine disputes of material fact exist regarding his control of the debt collection agencies, and therefore his personal liability for their actions. We disagree. In light of the undisputed evidence regarding the Corporate Defendants' operations and Briandi's relationship with them, we conclude that he had both sufficient authority over the Corporate Defendants, and knowledge of their practices, to be held individually liable for their misconduct as a matter of law.
A. Standard for Individual Liability Under the FTCA and FDCPA
Section 5(a)(1) of the FTCA,
An individual may be held liable under the FTCA for a corporation's deceptive acts or practices "if, with knowledge of the deceptive nature of the scheme, he either 'participate[s] directly in the practices or acts or ha[s] authority to control them.' " FTC v. LeadClick Media, LLC ,
*307the corporate practices were misrepresentations or omissions of a kind usually relied on by reasonably prudent persons and that consumer injury resulted. Once corporate liability is established, the FTC must show that the individual defendants participated directly in the practices or acts or had authority to control them. Authority to control the company can be evidenced by active involvement in business affairs and the making of corporate policy, including assuming the duties of a corporate officer.
Amy Travel,
The FTC need not establish in this context that the defendant had actual and explicit knowledge of the particular deception at issue. We agree with our sister circuits that "knowledge 'may be established by showing that the individual [defendant] had actual knowledge of the deceptive conduct, [or ] was recklessly indifferent to its deceptiveness, or had an awareness of a high probability of deceptiveness and intentionally avoided learning of the truth.' " FTC v. Primary Grp., Inc. ,
Finally on this score, we conclude that the same standard applies when the FTC brings an action to enforce the FDCPA. "[V]iolations of the FDCPA are deemed to be unfair or deceptive acts or practices under the [FTCA]." Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA ,
B. Briandi's Authority to Control the Corporate Defendants
Briandi was a founder of all but perhaps one of the Corporate Defendants, held a 50 percent ownership stake in them, had signatory authority over their bank accounts, and served as their co-director and general manager. In these various roles, Briandi had the authority to control the Corporate Defendants' deceptive actions. For example, in his deposition, Briandi admitted to having the power to hire and reprimand employees including those responsible for the Corporate Defendants' violations of the FTCA and FDCPA.
Briandi retained this authority after signing the AOD. From March 2013 until the time of the FTC's complaint, he remained *308a co-owner, co-director, and general manager of the Corporate Defendants, fielded hostile calls from consumers, continued to review the Corporate Defendants' financial activities, and, once or twice a day, would visit the collection floor, where he would speak to other managers about the corporations' business.
Briandi's deposition testimony that he contends was to the contrary was directed to the question of whether he exercised authority to control the Corporate Defendants' conduct, not whether he possessed authority to control it, which is the dispositive issue. Viewed in light of all the evidence properly before the district court on the motion for summary judgment, then, Briandi's denial of involvement in, rather than the authority to control the actions of, the Corporate Defendants did not create a dispute of material fact requiring the district court to deny the motion.
C. Briandi's Knowledge of the Corporate Defendants' Activities
The defendants were ordered to disgorge $10,852,396, an amount equal to all profits "resulting from [d]efendants' unlawful acts or practices," Fed. Check Processing, Inc .,
We agree with the magistrate judge's report and recommendation that after the AOD was executed by Briandi in 2013, Briandi was at least aware "of a high probability of fraud and intentionally avoided learning the truth." Fed. Check Processing, Inc .,
After executing the document, Briandi nonetheless continued to oversee the Corporate Defendants' collection activities. As the magistrate judge pointed out, the FTC found "numerous consumer complaints in Briandi's personal office." Id. at *13,
To be sure, Briandi testified, as noted above, that beginning in March 2013, he neglected his managerial duties in favor of prayer and other spiritual pursuits. But he alleged that he began to neglect these managerial duties only after personally executing the AOD, in which he agreed to take measures to address the Corporate Defendants' deceptive conduct; and he did so after executing an affidavit in which he represented that he had implemented procedures - including the hiring of a "compliance officer" - to ensure that the Corporate Defendants met the requirements of the FDCPA. Therefore, when, according to Briandi, he retreated into spiritual pursuits at the expense of his managerial duties, he was not only on notice that the Corporate Defendants had been violating the FDCPA; he had taken on a personal duty to correct the Corporate Defendants' misbehavior. Briandi's withdrawal under these circumstances is at least evidence of *309reckless indifference to the Corporate Defendants' deceptive conduct after the 2013 AOD. See Primary Grp. ,
We also agree with the district court that Briandi had knowledge of the Corporate Defendants' unlawful conduct prior to the 2013 AOD. Fed. Check Processing, Inc .,
Far from demonstrating that the testimony was false, Briandi essentially corroborated it in his own deposition. There he admitted that he would take over from employees calls with hostile debtors, but said that he did so less frequently after he signed the AOD and became more engaged in his religious practices. According to his testimony, then, he was even more involved with the debt collection calls prior to the 2013 AOD. Indeed, Briandi made some of the more offensive collection calls himself; they were mentioned in nine consumer complaints filed before the AOD was executed. The magistrate judge and district court thus had ample evidence upon which to conclude that Briandi had knowledge of the Corporate Defendants' violations both before and after he executed the AOD.
IV. FTC Disgorgement
Finally, Briandi argues that the FTC's request that he be ordered to disgorge $10,852,396, which was adopted by the magistrate judge and confirmed by the district court, was grossly excessive. Briandi asserts that the FTC's calculation was predicated on "approximately 45 calls where it claimed that fraudulent claims were made," which is "a far cry from the court's finding that the entire operation was 'permeated with fraud.' " Briandi Br. 30-31 (quoting Fed. Check Processing, Inc. ,
Section 13(b) of the FTCA provides that "in proper cases the [FTC] may seek, and after proper proof, the court may issue, a permanent injunction."
*310FTC v. Bronson Partners , LLC,
We have adopted a "two-step burden-shifting framework for calculating equitable monetary relief. That framework requires a court to look first to the FTC to 'show that its calculations reasonably approximated the amount of the defendant[s'] unjust gains' and then shift the burden 'to the defendants to show that those figures were inaccurate.' "
To obtain equitable monetary relief, the FTC must also demonstrate that consumers relied on the misrepresentations at issue. Because "requir[ing] proof of each individual consumer's reliance on a defendant's misrepresentations would be an onerous task with the potential to frustrate the purpose of the FTC's statutory mandate," we concluded in FTC v. BlueHippo Funding, LLC ,
Here, in support of its motion for summary judgment, the FTC submitted more than five hundred consumer complaints regarding the defendants' debt collection practices, aggressive collection telephone scripts located in fifteen of the twenty-six Corporate Defendants' collection cubicles, and audio recordings of twenty-one of the twenty-five employee debt-collectors falsely telling consumers that the employees were law enforcement personnel or "processors." There is thus ample proof that the misrepresentations at issue were widely disseminated.
Briandi argues that those consumer complaints are inadmissible at the summary judgment stage. But he explicitly waived that challenge in the district court. As the magistrate judge correctly noted:
The defendants do not argue that the FTC's evidence (e.g. , telephone calls, scripts, consumer complaints) is inadmissible, and their failure to do so may be construed as a waiver of any such argument. DeCintio v. Westchester Cnty. Med. Ctr. ,821 F.2d 111 , 114 (2d Cir. 1987).
Fed. Check Processing, Inc. ,
Moreover, the case that Briandi relies on for the proposition that it is inappropriate to admit consumer complaints in support of a motion for summary judgment, FTC v. Washington Data Resources , No. 8:09-cv-2309,
Finally, even excluding consideration of these complaints, it is clear from the voluminous audio recordings and collection scripts submitted to the magistrate judge by the FTC that the magistrate judge did not err in concluding - nor did the district court in adopting the conclusion - that the defendants' operation was "permeated with fraud." Fed. Check Processing, Inc. ,
The FTC has thus shown that it was entitled to a presumption of reliance. And when the FTC establishes such a presumption, it can "use[ ] the defendants'
*311gross receipts as a baseline for calculating damages" at the first step of the burden-shifting framework. BlueHippo Funding, LLC ,
CONCLUSION
We have considered the appellants' remaining arguments on appeal and conclude that they are without merit. For the foregoing reasons, we DISMISS Moses's appeal, and AFFIRM the remainder of the judgment of the district court.
Local Rule 31.2(d) provides: "Failure to File. The court may dismiss an appeal or take other appropriate action for failure to timely file a brief or to meet a deadline under this rule."
The following statement of facts is taken primarily from the FTC's "Statement of Material Facts as to Which There is no Genuine Issue to be Tried," which is largely undisputed, and, where relevant, evidence Briandi proffered in attempting to establish the existence of a genuine dispute of material fact.
"While there is no set definition of a payday loan, it is usually a short-term, high cost loan, generally for $500 or less, that is typically due on [the borrower's] next payday." U.S. Consumer Financial Protection Bureau, "What is a payday loan?," available at https://www.consumerfinance.gov/ask-cfpb/what-is-a-payday-loan-en-1567/ (last visited December 16, 2018); see also Fed. Trade Comm'n v. Fed. Check Processing, Inc. , No. 14-CV-122-WMS-MJR,
The First, Fourth, Seventh, Ninth, Tenth, and Eleventh Circuits have also adopted this standard. See FTC v. Direct Mktg. Concepts, Inc. ,
Under Eleventh Circuit Local Rule 36-2, "[u]npublished opinions are not considered binding precedent, but they may be cited as persuasive authority," as we do here.