                                                    [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                    FILED
                                                      U.S. COURT OF APPEALS
                            _____________               ELEVENTH CIRCUIT
                                                            JULY 19, 2007
                             No. 06-11827                THOMAS K. KAHN
                            _____________                      CLERK


               D.C. Docket No. 03-02353-CV-T-17-TBM

FEDERAL TRADE COMMISSION,
                                                    Plaintiff-Appellee,

                                 versus
PEOPLES CREDIT FIRST, LLC,
CONSUMER PREFERRED, LLC,
f.k.a. Consumer First LLC,
SHAUN OLMSTEAD,
JULIE CONNELL,
                                                    Defendants-Appellants,
                                 versus
MARK BERNET,
                                                    Receiver-Appellee,
PRODUCT DYNAMICS, LLC,
SOHO HOLDINGS, LLC,
GENERATION HOUSING, LLC,
NU PRODUCTS, LLC,
FOUNDATION COMMERCIAL PROPERTIES, LLC,
                                                    Movants-Appellees.
                             ____________

               Appeal from the United States District Court
                   for the Middle District of Florida
                             ____________

                             (July 19, 2007)
Before ANDERSON, MARCUS and HILL, Circuit Judges.

PER CURIAM:

       Peoples Credit First, LLC (PCF), Consumer Preferred, LLC, f.k.a.

Consumer First LLC (CP), Shaun Olmstead, and Julie Connell appeal the grant of

summary judgment entered in favor of the Federal Trade Commission (FTC) and

against defendants, jointly and severally, for permanent injunctive relief and for

equitable monetary relief in the amount of $10,156,700.40, for violations of

section 5(a) of the FTC Act (Act), 15 U.S.C. § 45(a). In a one-count complaint the

FTC alleged that defendants engaged in false and misleading business practices

constituting deceptive acts or practices in violation of the Act by representing in

direct mail letters that, by paying a fee, a consumer would, or was highly likely to,

receive a major credit card.

       The corporate defendants and Olmstead and Connell1 raise six arguments on

appeal: (1) that the magistrate judge erred in ignoring appellants’ assertion that

the case was not a proper case pursuant to section 13(b) of the Act; (2) that the

magistrate judge erred in entering summary judgment for appellee over competing

inferences; (3) that the magistrate judge erred in awarding consumer redress; (4)



       1
       Olmstead and Connell directed, controlled and participated in the business activities of
PCF and CP.

                                               2
that appellants were denied due process of law in the expansion of the

receiverships; (5) that appellants were denied due process of law as a result of the

asset freeze; and (6) that the magistrate judge erred in awarding compensation to

the receiver from unspecific entities and by not dissolving the receivership.

       We review the magistrate judge’s entry of summary judgment in favor of the

FTC de novo. See Ellis v. England, 432 F.3d 1321, 1325 (11th Cir. 2005). After

thorough review of the entire record, the briefs and the oral arguments of the

parties, we affirm.2

       Since 2001, PCF and CP engaged in the business of selling memberships in

a buyer’s club.3 For more than two years, the two companies mailed over 10

million mail pieces to consumers throughout the United States soliciting

acceptance certificates. For a $45 or a $49 advance fee, consumers were

“guaranteed” approval for a PC “First Platinum card with a credit line of

$5,000.00.” In the mail piece, a ‘platinum card’ was promised eight times. Over

200,000 consumers accepted the offer and promise. Gross sales exceeded 11


       2
         Issues (1), (3) and (5) are without merit and affirmed without discussion. Further, we
have no jurisdiction to review a separate final judgment awarding fees to the receiver (Issue 6),
nor do we have jurisdiction to review a claim expanding the receivership to including assets of
various other corporations (Issue 4). In this opinion, we review only Issue 2, whether the
magistrate judge erred in granting summary judgment in favor of the FTC.
       3
         Apparently PCF and CP made a passing effort to operate as a buyer’s club. During this
time there were 1,082 orders for merchandise totaling $394,119.71.

                                                 3
million dollars. Net proceeds equaled $10,156,700.40.

      Eventually, consumer complaints began in earnest. Evidence supports that

there were an average of 200 telephone complaints per day to the two companies

themselves. The Better Business Bureau of West Florida (BBB) received 267

written complaints against PCF and 179 written complaints against CP. The BBB

also received over 20,000 telephone and internet inquiries seeking information on

PCF and CP. In addition, there are nineteen declarations in the record on appeal

from consumers stating that he or she sent either the $45 or the $49 advance fee to

PCF or CP because they believed they were obtaining a major credit card such as a

platinum Visa or a platinum MasterCard.

      Section 5(a) of the act provides in pertinent part that “deceptive acts or

practices in or affecting commerce” are unlawful. 15 U.S.C. § 45(a)(1), (2). To

establish that an act or practice is deceptive, the FTC must show that (1) there was

a representation or omission, (2) the representation or omission was likely to

mislead consumers acting reasonably under the circumstances, and (3) the

representation or omission was material. See FTC v. Tashman, 318 F.3d, 1273,

1277 (11th Cir. 2003).

      We agree that the undisputed evidence establishes that the appellants made

material representations, express or implied, that were likely to mislead reasonable

                                          4
consumers. The fact that the words in the mail piece are technically or literally

true is not persuasive. The material implication in the entirety of the mail piece is

that the consumer had been approved for and would receive a platinum credit card

in the mail with a $5,000 credit limit upon payment of the $45 or $49 advance fee.

      Based upon the detailed findings and thoroughly explained reasoning of the

magistrate judge in his order granting summary judgment to the FTC, we affirm

the judgment.

      AFFIRMED.




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