Case 0:14-cv-60166-RNS Document 175 Entered on FLSD Docket 08/13/2021 Page 1 of 13
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`United States District Court
`for the
`Southern District of Florida
`
`
`
`Civil Action No. 14-60166-Civ-Scola
`
`Federal Trade Commission, Plaintiff
`
`v.
`
`Acquinity Interactive, LLC, and
`others, Defendants
`
`)
`)
`)
`)
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`Preliminary Injunction
`This matter is before the Court upon the FTC’s motion for temporary
`
`restraining order, which as set forth in the Court’s omnibus order, the Court
`construes as a motion for preliminary injunction. (ECF No. 138.) As set forth in
`the Court’s August 13, 2021 omnibus order (ECF No. 174), the Court grants
`the FTC’s motion.
`
`On October 16, 2014, the Court entered a Stipulated Order for
`Permanent Injunction and Other Equitable Relief as to Defendants Burton Katz
`and Jonathan Smyth (the “2014 Order”). The 2014 Order resolved the case filed
`by the Federal Trade Commission (“FTC”) as to Defendant Burton Katz. The
`2014 Order provided that Katz, along with his “officers, agents, servants, and
`employees, and all other persons in active concert or participation with any of
`them, who receive actual notice of this Order, whether acting directly or
`indirectly,” in “connection with the advertising, marketing, promotion, offering
`for sale, sale, or distribution of any product or service,” are “permanently
`restrained and enjoined from making, or assisting others in making, expressly
`or by implication, any false or misleading material misrepresentation. (ECF No.
`132, at 3.)
`In December 2019, the FTC filed a separate complaint against the
`Contempt Defendants and others, alleging their deceptive websites violated
`Section 5 of the FTC Act. The case is styled FTC v. On Point Global LLC, et al.,
`19-25046-Civ (S.D. Fla.) (the “On Point Matter”). In the On Point Matter, the FTC
`concurrently sought a temporary restraining order, including an asset freeze.
`The Court granted the FTC’s request for a temporary restraining order on
`December 13, 2019, freezing the Contempt Defendants’ assets. The FTC noted
`in its initial filings in the On Point Matter that the complaint in FTC v. On Point
`Global was related to this matter, that the FTC intended to file a motion for
`contempt in this matter, and that the factual and legal issues in the two cases
`overlapped. (On Point Matter, ECF No. 5.)
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`On January 14, 2020, following a two-day evidentiary hearing on the
`FTC’s motion for a Preliminary Injunction in the On Point Matter, the Court
`entered a Preliminary Injunction, which continued the freeze on the Contempt
`Defendants’ assets.
`In February 2020, the FTC moved for an order to show cause why Burton
`Katz and the Corporate Contempt Defendants should not be held in contempt
`for their violations of the 2014 Order (the “First Contempt Motion”), seeking
`civil contempt compensatory remedies for those violations. In April 2021, the
`FTC moved for an order to show cause why Robert Zangrillo, Brent Levison,
`and Elisha Rothman should not be held in contempt for their violations of the
`2014 Order (the “Second Contempt Motion”), which sought the same civil
`contempt compensatory remedies against those defendants. With the April
`2021, motion, the FTC filed a motion for a temporary restraining order freezing
`the Contempt Defendants’ Assets (the “TRO Motion”).
`
`Findings of Fact
`The Court, having considered the TRO Motion, First Contempt Motion,
`Second Contempt Motion, declarations, exhibits, and the memorandum of
`points and authorities filed in support thereof1; having heard testimony and
`reviewed evidence concerning the business practices of the Contempt
`Defendants during the two-day preliminary injunction hearing in the On Point
`Matter; and being otherwise fully advised, finds that:
`A. The Court has jurisdiction over this matter for all purposes as provided
`in Section XI (Retention of Jurisdiction) of the 2014 Order.
`B. The 2014 Order is lawful, valid, and unambiguous.
`C. There is good cause to believe the Contempt Defendants has actual
`notice of the 2014 Order and the ability to comply with it.
`D. There is good cause to believe that the Contempt Defendants have
`engaged in acts or practices that violate Section II of the 2014 Order, and that
`the Plaintiff is therefore likely to prevail on the merits of this action. As the
`Court previously ruled on January 14, 2020, following a two-day evidentiary
`hearing during which the Contempt Defendants were represented by counsel,
`the Plaintiff demonstrated by the records of undercover purchases; consumer
`complaints and declarations; expert testing; corporate, banking, and payment
`processing records; and additional documents filed by the FTC, the FTC has
`established a likelihood of success in showing that Contempt Defendants, with
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`1 “At the preliminary injunction stage, a district court may rely on affidavits and hearsay
`materials which would not be admissible evidence for a permanent injunction, if the evidence is
`appropriate given the character and objectives of the injunctive proceeding.” Levi Strauss and
`Co. b. Sunrise Intern. Trading, 51 F.3d 982 (11th Cir. 1995).
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`Case 0:14-cv-60166-RNS Document 175 Entered on FLSD Docket 08/13/2021 Page 3 of 13
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`knowledge of the 2014 Order, have made, or assisted others in making,
`expressly by implication, false or misleading material representations. The
`Contempt Defendants deceived consumers by misrepresenting the services they
`offer, thus inducing consumers to pay money or divulge personal information
`under false pretenses. The Court need not, as a matter of law, depend on a
`consumer survey to prove that the websites had a tendency to deceive. FTC v.
`Brown & Williamson Tobacco Corp., 778 F.2d 35, 40-41 (D.C. Cir. 1985)
`(“Evidence of consumer reaction usually takes the form of market research or
`consumer surveys, but a trial court may accord other forms of evidence
`substantial weight if that evidence appears reliable.”). Although the consumer
`surveys presented in this case by the FTC had some minor flaws, the results
`clearly show that consumers were misled by the websites. And, thus
`independent evidence is unnecessary in this case. The Court finds that the
`websites were patently misleading. The websites were cleverly designed so that
`even though disclosures appeared on many or most of the pages, consumers’
`attention would be drawn to links and language in larger, more colorful font
`that directed them to the service they were seeking (such as renewing a driver’s
`license) and most consumers would likely ignore the disclosures written in
`relatively smaller and pale-colored font. And, if a consumer did read the
`disclosures, they would learn they could purchase a guide and would also
`learn that the site is a privately-owned company selling guides that can be
`obtained for free elsewhere on governmental sites. But, most importantly, they
`were not clearly informed that they could not obtain the government service
`they were misled to believe was available to them.
`E. There is good cause to believe that immediate and irreparable damage to
`the Court’s ability to grant effective full compensatory contempt relief will occur
`from the sale, transfer, destruction or other disposition or concealment by
`Contempt Defendants of their assets or records, unless Contempt Defendants
`are immediately restrained and enjoined by order of this Court.
`F. There is good cause to believe that a reasonable approximation of the
`total consumer loss caused by the Contempt Defendants’ violation of the 2014
`Order, which represents the full compensatory relief, equals $104,723,274.62.
`G. Good cause exists for freezing the Contempt Defendants’ Assets.
`H. Weighing the equities and considering the Plaintiff’s likelihood of ultimate
`success on the merits, a preliminary injunction with an asset freeze is in the
`public interest.
`I. This Court has authority to issue this Order pursuant to its own
`inherent authority, see United States v. United Mine Workers of America, 300
`U.S. 258, 290, 301 (1947), and the All Writs Act, 28 U.S.C. § 1651.
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`Case 0:14-cv-60166-RNS Document 175 Entered on FLSD Docket 08/13/2021 Page 4 of 13
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`J. No security is required of any agency of the United States for Issuance of
`a t preliminary injunction. Fed. R. Civ. P. 65(c).
`
`Definitions
`For the purposes of this Order, the following definitions shall apply:
`A. Asset” means any legal or equitable interest in, right to, or claim to, any
`property, where located and by whomever held.
`B. “Corporate Contempt Defendant” means On Point Global LLC; On
`Point Employment LLC; On Point Guides LLC f/k/a Rogue Media Services LLC;
`DG DMV LLC; Waltham Technologies LLC; Cambridge Media Series LLC f/k/a
`License America Media Series LLC; Issue Based Media LLC; Dragon Global
`LLC; Dragon Global Management LLC; Dragon Global Holdings LLC; Direct
`Market LLC; Bronco Family Holdings LP a/k/a Bronco Holdings Family LP; and
`each of their subsidiaries, affiliates, successors, and assigns.
`C. “Contempt Defendant(s)” means the Corporate Contempt Defendants
`and Individual Contempt Defendants, individually, collectively, or in any
`combination.
`D. “Document” is synonymous in meaning and equal in scope to the usage
`of “document” and “electronically stored information” in Federal Rule of Civil
`Procedure 34(a), and includes writings, drawings, graphs, charts, photographs,
`sound and video recordings, images, Internet sites, web pages, websites,
`electronic correspondence, including e-mail and instant messages, contracts,
`accounting data, advertisements, FTP Logs, Server Access Logs, books, written
`or printed records, handwritten notes, telephone logs, telephone scripts, receipt
`books, ledgers, personal and business canceled checks and check registers,
`bank statements, appointment books, computer records, customer or sales
`databases and any other electronically stored information, including
`Documents located on remote servers or cloud computing systems, and other
`data or data compilations from which information can be obtained directly or, if
`necessary, after translation into a reasonably usable form. A draft or non-
`identical copy is a separate document within the meaning of the term.
`E. “Electronic Data Host” means any person or entity in the business of
`storing, hosting, or otherwise maintaining electronically stored information.
`This includes, but is not limited to, any entity hosting a website or server, and
`any entity providing “cloud based” electronic storage.
`F. “Individual Contempt Defendant(s)” means Burton Katz, Brent
`Levison, and Elisha Rothman, individually, collectively, or in any combination.
`G. “Receiver” means Melanie Damian, as the Receiver in the On Point
`Matter, and any deputy receivers she names.
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`

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`Case 0:14-cv-60166-RNS Document 175 Entered on FLSD Docket 08/13/2021 Page 5 of 13
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`Order
`I. Asset Freeze
`It is further ordered that the Contempt Defendants and their officers,
`agents, employees, and attorneys, and all other persons in active concert or
`participation with any of them, who received actual notice of this Order,
`whether acting directly or indirectly, are hereby preliminarily restrained and
`enjoined from:
`A. Transferring, liquidating, converting, encumbering, pledging, loaning,
`selling, concealing, dissipating, disbursing, assigning, relinquishing, spending,
`withdrawing, granting a lien or security interest or other interest in, or
`otherwise disposing of any Assets that are:
`1. owned or controlled, directly or indirectly, by any Contempt
`Defendant;
`2. held, in part or in whole, for the benefit of any Contempt
`Defendant; or
`3. owned or controlled by, in the actual or constructive possession of,
`or otherwise held for the benefit of, any corporation, partnership,
`asset protection trust, or other entity that is directly or indirectly
`owned, managed or controlled by any Contempt Defendant.
`B. Opening or causing to be opened any safe deposit boxes, commercial
`mail boxes, or storage facilities titled in the name of any Contempt Defendant
`or subject to access by any Contempt Defendant, except as necessary to
`comply with written requests from the Receiver acting pursuant to its
`authority in the On Point Matter;
`C. Incurring charges or cash advances on any credit, debit, or ATM card
`issued in the name, individually or jointly, of any Corporate Contempt
`Defendant or any corporation, partnership, or other entity directly or indirectly
`owned, managed, or controlled by any Contempt Defendant or of which any
`Contempt Defendant is an officer, director, member, or manager. This includes
`any corporate bankcard or corporate credit card account for which any
`Contempt Defendant is, or was on the date that this Order was signed, an
`authorized signor; and
`D. Cashing any checks or depositing any money orders or cash received
`from consumers, clients, or customers of any Contempt Defendant.
`The Assets affected by this Section shall include: (1) all Assets of
`Contempt Defendants as of the time this Order is entered; and (2) Assets
`obtained by Contempt Defendants after this Order is entered if those Assets
`are derived from any activity that is the subject of or that is prohibited by this
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`

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`Case 0:14-cv-60166-RNS Document 175 Entered on FLSD Docket 08/13/2021 Page 6 of 13
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`Order. This Section does not prohibit any transfers to the Receiver or
`repatriation of foreign Assets specifically required by this order.
`II. Duties of Asset Holders and Other Third Parties
`It is further ordered that any financial or brokerage institution,
`Electronic Data Host, credit card processor, payment processor, merchant
`bank, acquiring bank, independent sales organization, third party processor,
`payment gateway, insurance company, business entity, or person who receives
`actual notice of this Order (by service or otherwise) that:
`
`(a) has held, controlled, or maintained custody, through an account or
`otherwise, of any Document on behalf of any Contempt Defendant or any Asset
`that has been owned or controlled, directly or indirectly, by any Contempt
`Defendant; held, in part or in whole, for the benefit of any Contempt
`Defendant; in the actual or constructive possession of any Contempt
`Defendant; or owned or controlled by, in the actual or constructive possession
`of, or otherwise held for the benefit of, any corporation, partnership, asset
`protection trust, or other entity that is directly or indirectly owned, managed or
`controlled by any Contempt Defendant;
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`(b) has held, controlled, or maintained custody, through an account or
`otherwise, of any Document or Asset associated with credits, debits, or charges
`made on behalf of any Contempt Defendant, including reserve funds held by
`payment processors, credit card processors, merchant banks, acquiring banks,
`independent sales organizations, third party processors, payment gateways,
`insurance companies, or other entities; or
`(c) has extended credit to any Contempt Defendant, including through a
`credit card, shall:
`A. Hold, preserve, and retain within its control and prohibit the withdrawal,
`removal, alteration, assignment, transfer, pledge, encumbrance, disbursement,
`dissipation, relinquishment, conversion, sale, or other disposal of any such
`Document or Asset, as well as all Documents or other property related to such
`Assets, except by further order of this Court; provided, however, that this
`provision does not prohibit an Individual Contempt Defendant from incurring
`charges on a personal credit card established prior to entry of this Order, up to
`the pre-existing credit limit;
`B. Deny any person, except the Receiver, access to any safe deposit box,
`commercial mail box, or storage facility that is titled in the name of any
`Contempt Defendant, either individually or jointly, or otherwise subject to
`access by any Contempt Defendant;
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`C. Provide Plaintiff’s counsel and the Receiver, within three (3) days of
`receiving a copy of this Order, a sworn statement setting forth, for each Asset
`or account covered by this Section:
`1. The identification number of each such account or Asset;
`2. The balance of each such account, or a description of the nature
`and value of each such Asset as of the close of business on the day
`on which this Order is served, and, if the account or other Asset
`has been closed or removed, the date closed or removed, the total
`funds removed in order to close the account, and the name of the
`person or entity to whom such account or other Asset was
`remitted; and
`3. The identification of any safe deposit box, commercial mail box, or
`storage facility that is either titled in the name, individually or
`jointly, of any Contempt Defendant, or is otherwise subject to
`access by any Contempt Defendant.
`D. Upon the request of Plaintiff’s counsel or the Receiver, promptly provide
`Plaintiff’s counsel and the Receiver with copies of all records or other
`Documents pertaining to any account covered by this Section or Asset,
`including originals or copies of account applications, account statements,
`signature cards, checks, drafts, deposit tickets, transfers to and from the
`accounts, wire transfers and wire transfer instructions, all other debit and
`credit instruments or slips, currency transaction reports, 1099 forms, and all
`logs and records pertaining to safe deposit boxes, commercial mail boxes, and
`storage facilities.
`Provided, however, that this Section does not prohibit any transfers to
`the Receiver or repatriation of foreign Assets specifically required by this Order.
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`III. Foreign Asset Repatriation
`It is further ordered that within five (5) days following the service of this
`Order, each Contempt Defendant shall:
`A. To the extent not already completed, provide Plaintiff’s counsel and the
`Receiver with a full accounting, verified under oath and accurate as of the date
`of this Order, of all Assets, Documents, and accounts outside of the United
`States which are: (1) titled in the name, individually or jointly, of any Contempt
`Defendant; (2) held by any person or entity for the benefit of any Contempt
`Defendant or for the benefit of any corporation, partnership, asset protection
`trust, or other entity that is directly or indirectly owned, managed or controlled
`by any Defendant; or (3) under the direct or indirect control, whether jointly or
`singly, of any Defendant;
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`B. To the extent not already completed, take all steps necessary to provide
`Plaintiff’s counsel and Receiver access to all Documents and records that may
`be held by third parties located outside of the territorial United States of
`America, including signing the Consent to Release of Financial Records
`appended to this Order as Attachment A;
`C. Transfer to the territory of the United States all Documents and Assets
`located in foreign countries which are: (1) titled in the name, individually or
`jointly, of any Contempt Defendant; (2) held by any person or entity for the
`benefit of any Contempt Defendant or for the benefit of any corporation,
`partnership, asset protection trust, or other entity that is directly or indirectly
`owned, managed, or controlled by any Contempt Defendant; or (3) under the
`direct or indirect control, whether jointly or singly, of any Contempt Defendant;
`and
`D. The same business day as any repatriation, (1) notify the Receiver and
`counsel for Plaintiff of the name and location of the financial institution or
`other entity that is the recipient of such Documents or Assets; and (2) serve
`this Order on any such financial institution or other entity.
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`IV. Non-Interference With Repatriation
`It is further ordered that Contempt Defendants, Contempt Defendants’
`officers, agents, employees, and attorneys, and all other persons in active
`concert or participation with any of them, who receive actual notice of this
`Order, whether acting directly or indirectly, are hereby preliminarily restrained
`and enjoined from taking any action, directly or indirectly, which may result in
`the encumbrance or dissipation of foreign Assets, or in the hindrance of the
`repatriation required by this Order, including, but not limited to:
`A. Sending any communication or engaging in any other act, directly or
`indirectly, that results in a determination by a foreign trustee or other entity
`that a “duress” event has occurred under the terms of a foreign trust
`agreement until such time that all Contempt Defendants’ Assets have been
`fully repatriated pursuant to this Order; or
`B. Notifying any trustee, protector or other agent of any foreign trust or
`other related entities of either the existence of this Order, or of the fact that
`repatriation is required pursuant to a court order, until such time that all
`Contempt Defendants’ Assets have been fully repatriated pursuant to this
`Order.
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`V. Consumer Credit Reports
`It is further ordered that Plaintiff may obtain credit reports concerning
`any Contempt Defendants pursuant to Section 604(a)(1) of the Fair Credit
`Reporting Act, 15 U.S.C. 12 1681b(a)(1), and that, upon written request, any
`credit reporting agency from which such reports are requested shall provide
`them to Plaintiff.
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`VI. Preservation of Records
`It is further ordered that Contempt Defendants, Contempt Defendants’
`officers, agents, employees, and attorneys, and all other persons in active
`concert or participation with any of them, who receive actual notice of this
`Order, whether acting directly or indirectly, are hereby preliminarily restrained
`and enjoined from:
`A. Destroying, erasing, falsifying, writing over, mutilating, concealing,
`altering, transferring, or otherwise disposing of, in any manner, directly or
`indirectly, Documents that relate to: (1) the business, business practices,
`Assets, telephone records, email account records, or business or personal
`finances of any Contempt Defendant; (2) any webpage or website operated, in
`whole or in part, on any Contempt Defendant’s or Contempt Defendants’
`behalf; (3) any electronic communications sent or received by Contempt
`Defendants; (4) the business practices or finances of entities directly or
`indirectly under the control of any Contempt Defendant; or (5) the business
`practices or finances of entities directly or indirectly under common control
`with any other Contempt Defendant; and
`B. Failing to create and maintain Documents that, in reasonable detail,
`accurately, fairly, and completely reflect Contempt Defendants’ incomes,
`disbursements, transactions, and use of Contempt Defendants’ Assets.
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`VII. Non-Interference With The Receiver’s Rights, Duties, and
`Obligations in the On Point Matter
`It is further ordered that this Order does not affect, alter, or limit any
`right, duty, or obligation of Melanie Damian, as the Receiver in the On Point
`Matter, who was appointed as the Receiver in the preliminary injunction in the
`On Point Matter. (On Point Matter, ECF No. 126.)
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`VIII. Stay of Actions
`It is further ordered that, except by leave of this Court, during the
`pendency of the receivership ordered herein, Contempt Defendants, Contempt
`Defendants’ officers, agents, employees, attorneys, and all other persons in
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`active concert or participation with any of them, who receive actual notice of
`this Order, and their corporations, subsidiaries, divisions, or affiliates, and all
`investors, creditors, stockholders, lessors, customers and other persons
`seeking to establish or enforce any claim, right, or interest against or on behalf
`of Contempt Defendants, and all others acting for or on behalf of such persons,
`are hereby enjoined from taking action that would interfere with the exclusive
`jurisdiction of this Court over the Assets or Documents of the Contempt
`Defendants, including, but not limited to:
`A. Filing or assisting in the filing of a petition for relief under the
`Bankruptcy Code, 11 U.S.C. § 101 et seq., or of any similar insolvency
`proceeding on behalf of the Contempt Defendants;
`B. Commencing, prosecuting, or continuing a judicial, administrative, or
`other action or proceeding against the Contempt Defendants, including the
`issuance or employment of process against the Contempt Defendants, except
`that such actions may be commenced if necessary to toll any applicable statute
`of limitations; or
`C. Filing or enforcing any lien on any asset of the Corporate Contempt
`Defendants, taking or attempting to take possession, custody, or control of any
`Asset of the Corporate Contempt Defendants; or attempting to foreclose, forfeit,
`alter, or terminate any interest in any Asset of the Corporate Contempt
`Defendants, whether such acts are part of a judicial proceeding, are acts of
`self-help, or otherwise.
`Provided, however, that this Order does not stay: (1) the commencement
`or continuation of a criminal action or proceeding; (2) the commencement or
`continuation of an action or proceeding by a governmental unit to enforce such
`governmental unit’s police or regulatory power; or (3) the enforcement of a
`judgment, other than a money judgment, obtained in an action or proceeding
`by a governmental unit to enforce such governmental unit’s police or regulatory
`power.
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`IX. Service of this Order
`It is further ordered that copies of this Order as well as the Motion for
`temporary restraining order, which the Court construed as a motion for
`preliminary injunction, and all other pleadings, Documents, and exhibits filed
`contemporaneously with that Motion, may be served by any means, including
`facsimile transmission, electronic mail or other electronic messaging, personal
`or overnight delivery, U.S. Mail or FedEx, by agents and employees of Plaintiff,
`by any law enforcement agency, or by private process server, upon any
`Contempt Defendant or any person (including any financial institution) that
`may have possession, custody or control of any Asset or Document of any
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`Contempt Defendant, or that may be subject to any provision of this Order
`pursuant to Rule 65(d)(2) of the Federal Rules of Civil Procedure. For purposes
`of this Section, service upon any branch, subsidiary, affiliate or office of any
`entity shall effect service upon the entire entity.
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`X. Correspondence and Service on Plaintiff
`It is further ordered that, for the purpose of this Order, all
`correspondence and service of pleadings on Plaintiff shall be addressed to:
`
`
`Sarah Waldrop, counsel for Plaintiff Federal Trade Commission
`600 Pennsylvania Ave. NW, Mailstop CC-9528
`Washington, DC 20580
`(202) 326-3444 (tel.)
`(202) 326-3197 (fax)
`swaldrop@ftc.gov
`
`XI. Retention of Jurisdiction
`It is further ordered that this Court shall retain jurisdiction of this
`matter for all purposes.
`Done and ordered at Miami, Florida on August 13, 2021.
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`________________________________
`Robert N. Scola, Jr.
`United States District Judge
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`Attachment A
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`Case 0:14-cv-60166-RNS Document 175 Entered on FLSD Docket 08/13/2021 Page 13 of 13
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`Consent to Release of Financial Records
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`
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`I, __________________________of _______________________, (City, State), do
`hereby direct any bank, saving and loan association, credit union, depository
`institution, finance company, commercial lending company, credit card
`processor, credit card processing entity, automated clearing house, network
`transaction processor, bank debit processing entity, automated clearing house,
`network transaction processor, bank debit processing entity, brokerage house,
`escrow agent, money market or mutual fund, title company, commodity trading
`company, trustee, or person that holds, controls, or maintains custody of
`assets, wherever located, that are owned or controlled by me or at which there
`is an account of any kind upon which I am authorized to draw, and its officers,
`employees, and agents, to disclose all information and deliver copies of all
`documents of every nature in its possession or control which relate to the said
`accounts to any attorney of the Federal Trade Commission, and to give
`evidence relevant thereto, in the matter of FTC v. Acquinity Interactive, LLC,
`et al., now pending in the United States District Court for the Southern
`District of Florida, and this shall be irrevocable authority for so doing.
`
`This direction is intended to apply to the laws of countries other than the
`United States of America which restrict or prohibit disclosure of bank or other
`financial information without the consent of the holder of the account, and
`shall be construed as consent with respect hereto, and the same shall apply to
`any of the accounts for which I may be a relevant principal.
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`Dated:_______________
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`Signature:_____________________________
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`Printed Name:_________________________
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