                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


FEDERAL TRADE COMMISSION,               No. 18-15462
               Plaintiff-Appellee,
                                           D.C. No.
                 v.                     2:18-cv-00030-
                                          JCM-PAL
CONSUMER DEFENSE, LLC, a
Nevada limited liability company;
CONSUMER LINK, INC., a Nevada             OPINION
corporation; BENJAMIN R. HORTON,
in his individual and corporate
capacity;
                          Defendants,

                and

PREFERRED LAW, PLLC, a Utah
professional limited liability
company; AMERICAN HOME LOAN
COUNSELORS, a Utah limited liability
company; CONSUMER DEFENSE
GROUP, LLC, FKA Modification
Review Board, LLC, a Utah limited
liability company; CONSUMER
DEFENSE, LLC, a Utah limited
liability company; BROWN LEGAL,
INC., a Utah corporation; AM
PROPERTY MANAGEMENT, LLC, a
Utah limited liability company;
FMG PARTNERS, LLC, a Utah
2               FTC V. PREFERRED LAW

limited liability company; ZINLY,
LLC, a Utah limited liability
company; JONATHAN P. HANLEY, in
his individual and corporate
capacity; SANDRA X. HANLEY, in her
individual and corporate capacity;
AMERICAN HOME LOANS, LLC, a
Utah limited liability company,
                Defendants-Appellants,
_____________________________

THOMAS W. MCNAMARA,
             Receiver-Appellee.


      Appeal from the United States District Court
               for the District of Nevada
       James C. Mahan, District Judge, Presiding

       Argued and Submitted September 14, 2018
               San Francisco, California

                   Filed June 17, 2019

    Before: Johnnie B. Rawlinson, Paul J. Watford,
      and Michelle T. Friedland, Circuit Judges.

              Opinion by Judge Rawlinson
                     FTC V. PREFERRED LAW                               3

                            SUMMARY*


                   Federal Trade Commission

    The panel affirmed the district court’s order entering a
preliminary injunction freezing all of the defendants’ assets
in connection with Consumer Defense Global’s loan
modification business operations in an action initiated by the
Federal Trade Commission (FTC) alleging violations of the
FTC Act and Regulation O, 12 C.F.R. Part 1015 – Mortgage
Assistance Relief Services.

     The parties agreed that the FTC brought the action
pursuant to the second proviso of Section 13(b) of the FTC
Act, which allows the FTC to seek injunctive relief without
initiating administrative action, but disputed whether the FTC
was required to demonstrate a likelihood of irreparable harm
to obtain relief.

    The panel held that although in the ordinary case a
showing of irreparable harm was required to obtain injunctive
relief, no such showing was required when injunctive relief
was sought in conjunction with a statutory enforcement action
where the applicable statute authorized injunctive relief. The
panel further held that circuit precedent to that effect did not
present an irreconcilable conflict with the holding in Winter
v. Natural Resource Defense Council, Inc., 555 U.S. 7, 20
(2008), and remained valid. The panel concluded that the
district court committed no error in granting the motion for a


    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4                 FTC V. PREFERRED LAW

preliminary injunction without requiring the FTC to make the
traditional showing of irreparable injury.

    The panel addressed challenges to the district court’s
jurisdiction and the scope of the injunction in a concurrently
filed memorandum disposition.


                        COUNSEL

Karra J. Porter (argued) and Sarah E. Spencer, Christensen &
Jensen, P.C., Salt Lake City, Utah, for Defendants-
Appellants.

Imad D. Abyad (argued), Attorney; Joel Marcus, Deputy
General Counsel; Alden F. Abbott, General Counsel; Gregory
A. Ashe and Adam M. Wesolowski, Attorneys; J. Reilly
Dolan, Acting Director; Bureau of Consumer Protection;
Federal Trade Commission, Washington D.C.; for Plaintiff-
Appellee.

No appearance for Receiver-Appellee.
                     FTC V. PREFERRED LAW                               5

                              OPINION

RAWLINSON, Circuit Judge:

    This appeal stems from an action initiated by the Federal
Trade Commission (FTC) alleging violations of the Federal
Trade Commission Act, 15 U.S.C. § 45, and Regulation O,
12 C.F.R. Part 1015 - Mortgage Assistance Relief Services
(the MARS Rule). Defendants-Appellants Preferred Law,
PLLC; American Home Loan Counselors; Consumer Defense
Group, LLC; Consumer Defense, LLC; Brown Legal, Inc.;
AM Property Management, LLC; FMG Partners, LLC; Zinly,
LLC; Jonathan P. Hanley; Sandra X. Hanley; and American
Home Loans, LLC (collectively, Consumer Defense Global)
appeal the district court’s order entering an injunction
freezing all of the defendants’ assets in connection with
Consumer Defense Global’s loan modification business
operations.1

    Consumer Defense Global contends that the district court
erred as a matter of law because the court presumed
irreparable harm, rather than requiring that the FTC
demonstrate a likelihood of irreparable harm. We have
jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), and we
affirm.2




    1
     Consumer Defense-Nevada, Consumer Link-Nevada, and Benjamin
Horton do not join the instant appeal.
    2
       Consumer Defense Global also challenges the district court’s
jurisdiction and the scope of the injunction. We address these claims in a
concurrently filed memorandum disposition.
6                 FTC V. PREFERRED LAW

                    I. BACKGROUND

    In January of 2018, the FTC brought an action in federal
district court in the District of Nevada against Consumer
Defense, LLC (Consumer Defense-Nevada); Consumer Link,
Inc. (Consumer Link-Nevada); Benjamin Horton, an attorney
employed by Consumer Defense Global; and Consumer
Defense Global. The FTC alleged that Consumer Defense-
Nevada, Consumer Link-Nevada, Benjamin Horton, and
Consumer Defense Global, directed and controlled by
Jonathan Hanley, Sandra Hanley, and Benjamin Horton,
“operated as a common enterprise while engaging in the
deceptive acts and practices” of “luring [financially distressed
homeowners] into signing contracts for MARS services with
promises that they [would] receive expert legal assistance . . .
that [would] stop them from going into foreclosure and
modify their mortgage loans to make their payments more
affordable.”

    The FTC asserted that, “through an interrelated network
of companies” with common ownership, management,
physical locations, commingled funds, and marketing
materials, the defendants deceived consumers by regularly
misrepresenting the likelihood of obtaining a successful
modification, improperly charging advance fees for
modification services, suggesting an affiliation with or
endorsement by government programs, and instructing
customers to cease making their mortgage payments. As part
of this common enterprise, the FTC alleged, each of the
defendants had transacted business in the District of Nevada,
as well as throughout the United States. The FTC further
alleged that, in numerous instances, the defendants failed to
obtain relief for their customers, sometimes never contacting
the lenders at all. As a result of these practices, consumers
                  FTC V. PREFERRED LAW                       7

incurred substantial fees and penalties, with some entering
foreclosure and losing their homes.

     In connection with these activities, the FTC charged the
defendants with two violations of the FTC Act: making
“deceptive representations regarding substantially more
affordable loan payments, substantially lower interest rates,
or foreclosure avoidance” (Count I), and making “deceptive
representations regarding loan modification services” (Count
II). The FTC charged the defendants with four violations of
the MARS Rule: requesting “advance payments for mortgage
assistance relief services” (Count III); making prohibited
representations that consumers seeking loan modifications
“cannot or should not contact or communicate with his or her
lender” (Count IV) and material misrepresentations regarding
the likelihood of obtaining a modification, the defendants’
affiliation with governmental agencies, and the consumer’s
obligation to make payments on the current loan (Count V);
and failing to clearly and prominently make required
disclosures (Count VI). The FTC sought an injunction and
other equitable relief pursuant to Section 13(b) of the FTC
Act, 15 U.S.C. § 53(b).

    On the same day, the FTC filed an emergency ex parte
motion for a temporary restraining order (TRO), for an asset
freeze, for appointment of a receiver, and for an order to
show cause (OSC) as to why a preliminary injunction should
not issue. The district court granted the motion.

    In support of its request for a preliminary injunction, the
FTC asserted that it was likely to succeed on the merits, and
that the balance of equities tipped in the public’s favor. The
FTC maintained that irreparable harm was presumed for
purposes of a statutory enforcement action, but in a footnote
8                 FTC V. PREFERRED LAW

argued that it could nevertheless demonstrate irreparable
harm: without relief, the FTC asserted, there would be a
“likely destruction of evidence and dissipation of assets,” and
more consumers were likely to suffer financial harm from the
defendants’ activities.

    The defendants filed an opposition to the preliminary
injunction request. Consumer Defense Global conceded that
“they failed to make MARS-worded disclosures to some
consumers,” and “in a number of instances, they collected
fees for services before the execution of a written agreement
between the consumer and his or her loan holder or servicer,
which is a violation of the MARS Rule.” Nevertheless,
Consumer Defense Global contended that a preliminary
injunction was unwarranted because they had secured loan
modifications for the majority of their customers, and with
only a few exceptions, the FTC failed to demonstrate that
Consumer Defense Global neglected to provide MARS-
required disclosures, or that consumers were harmed by the
absence of required disclosures. Consumer Defense Global
contended that the FTC did not demonstrate irreparable harm
or a likelihood of success on the merits.

    Following a hearing, the district court entered an order
preliminarily enjoining Consumer Defense Global from
engaging in various business practices that the court
determined to be in violation of the FTC Act and the MARS
Rule, as well as freezing all of Consumer Defense Global’s
assets.

    Consumer Defense Global appealed the district court’s
order, contending that the district court erred by granting an
injunction without requiring the FTC to demonstrate
irreparable harm.
                  FTC V. PREFERRED LAW                        9

                II. LEGAL STANDARDS

    “A preliminary injunction should only be set aside if the
district court abused its discretion or based its decision on an
erroneous legal standard or on clearly erroneous findings of
fact. . . .” Puente Arizona v. Arpaio, 821 F.3d 1098, 1103
(9th Cir. 2016) (citation and internal quotation marks
omitted). “We review the district court’s legal conclusions
de novo, the factual findings underlying its decision for clear
error, and the injunction’s scope for abuse of discretion.”
K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 969 (9th Cir.
2015) (citation omitted).

                    III. DISCUSSION

    Section 13(b) of the FTC Act contains two provisos under
which the FTC may bring an action to enjoin activity in
violation of the Act. The first proviso applies when the FTC
intends to initiate administrative action and provides in
pertinent part:

           Upon a proper showing that, weighing the
       equities and considering the Commission’s
       likelihood of ultimate success, such action
       would be in the public interest, and after
       notice to the defendant, a temporary
       restraining order or a preliminary injunction
       may be granted . . .

15 U.S.C. § 53(b). This proviso “places a lighter burden on
the Commission than that imposed on private litigants by the
traditional equity standard; the Commission need not show
irreparable harm to obtain a preliminary injunction.” F.T.C.
10                FTC V. PREFERRED LAW

v. Warner Commc’ns Inc., 742 F.2d 1156, 1159 (9th Cir.
1984) (citations omitted).

    The second proviso allows the FTC to seek injunctive
relief without initiating administrative action and states:
“Provided further, That in proper cases the Commission may
seek, and after proper proof, the court may issue, a permanent
injunction.” 15 U.S.C. § 53(b) (emphasis in the original).
Interpreting the second proviso, we have held that:

            [B]ecause the district court has the power
       to issue a permanent injunction to enjoin acts
       or practices that violate the law enforced by
       the Commission, it also has authority to grant
       whatever preliminary injunctions are justified
       by the usual equitable standards and are
       sought in accordance with [Federal] Rule [of
       Civil Procedure] 65(a).

F.T.C. v. H. N. Singer, Inc., 668 F.2d 1107, 1111 (9th Cir.
1982); see also Fed. R. Civ. P. 65.

    The parties agree that the FTC brought the instant action
pursuant to the second proviso, but dispute whether the FTC
was required to demonstrate a likelihood of irreparable harm
to obtain relief. Consumer Defense Global contends that the
FTC was required to demonstrate a likelihood of irreparable
harm, as established in Winter v. Natural Resource Defense
Council, Inc., 555 U.S. 7, 20 (2008). The FTC counters that
in a case involving statutory enforcement where the
governing statute authorizes injunctive relief, irreparable
harm is presumed, and a court need only weigh the equities
and consider the likelihood of success on the merits. See
                    FTC V. PREFERRED LAW                          11

F.T.C. v. World Wide Factors, Ltd., 882 F.2d 344, 346–47
(9th Cir. 1989), as amended; see also United States v. Odessa
Union Warehouse Co-op, 833 F.2d 172, 175–76 (9th Cir.
1987).

      The FTC’s position is supported by our precedent. See
World Wide Factors, 882 F.2d at 346 (“Pursuant to 15 U.S.C.
§ 53(b), the district court is required (i) to weigh equities; and
(ii) to consider the FTC’s likelihood of ultimate success
before entering a preliminary injunction. Harm to the public
interest is presumed.”) (citation omitted) (emphasis added);
see also Odessa, 833 F.2d at 175 (“Where an injunction is
authorized by statute, and the statutory conditions are
satisfied . . ., the agency to whom the enforcement of the right
has been entrusted is not required to show irreparable injury
. . . .” (citations and footnote reference omitted).3

    Consumer Defense Global relies on the well-established
injunction standard most recently articulated by the Supreme
Court in Winter, 555 U.S. at 20:

            A plaintiff seeking a preliminary
        injunction must establish that he is likely to
        succeed on the merits, that he is likely to
        suffer irreparable harm in the absence of
        preliminary relief, that the balance of equities
        tips in his favor, and that an injunction is in
        the public interest. (Emphasis added).




    3
      It is undisputed that the FTC otherwise satisfied the statutory
conditions for imposition of an injunction.
12                 FTC V. PREFERRED LAW

    Our precedent eliminating the requirement of a showing
of irreparable harm in cases of statutory enforcement, where
an injunction is authorized by the applicable statute, pre-dates
the Supreme Court’s Winter decision. Consequently, the
question arises whether our cases eliminating the irreparable
harm showing for actions involving statutory enforcement,
where an injunction is authorized by the applicable statute,
remain good law. We addressed how to approach this kind of
question in Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.
2003) (en banc). In Miller, we held that if a “court of last
resort [has] undercut the theory or reasoning underlying the
prior circuit precedent in such a way that the cases are clearly
irreconcilable,” the prior circuit precedent cannot stand. Id. at
900. If the cases are “clearly irreconcilable,” the prior
irreconcilable case from the lower court is “effectively
overruled.” Id.

    In applying the holding of Miller, we have emphasized
that the “clearly irreconcilable” requirement “is a high
standard.” Rodriguez v. AT & T Mobility Servs. LLC, 728
F.3d 975, 979 (9th Cir. 2013). We explained that if we can
apply our precedent consistently with that of the higher
authority, we must do so. See id. at 979–80. We clarified that
“[i]t is not enough for there to be some tension between the
intervening higher authority and prior circuit precedent.” Id.
(quoting Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir.
2012)).

   Admittedly, there is some tension between the Supreme
Court’s holding in Winter and our holdings in World Wide
Factors and Odessa. Winter includes the requirement of a
showing of irreparable harm, and World Wide Factors and
Odessa eliminate that requirement for cases involving
                  FTC V. PREFERRED LAW                       13

statutory enforcement where the applicable statute authorizes
injunctive relief. See Winter, 555 U.S. at 20; cf. World Wide
Factors, 882 F.2d at 346; Odessa, 833 F.2d at 175. However,
as discussed, mere tension between the cases does not meet
the high standard of irreconcilable conflict. See Robertson,
875 F.3d at 1291. Rather, we must determine if the cases can
be applied consistently. See id.

    We conclude that the cases can be applied consistently.
Notably, the irreparable harm requirement articulated in
Winter is also present in earlier Supreme Court cases
referenced in Winter. See e.g., Amoco Prod. Co. v. Village of
Gambell, 480 U.S. 531, 542 (1987) (“[T]he bases for
injunctive relief are irreparable injury and inadequacy of legal
remedies . . . .”). Therefore, Winter did not purport to
introduce the irreparable harm requirement as a new
component of the preliminary injunction rubric, but clarified
application of the well-established equitable test for a
preliminary injunction. Indeed, in Odessa we acknowledged
pre-Winter that “[t]o obtain a preliminary injunction, the
movant must ordinarily show that there exists a significant
threat of irreparable injury.” 833 F.2d at 175 (emphasis
added). We then proceeded to describe the exception to the
ordinary circumstance: when the injunction is sought as a
corollary to statutory enforcement, and the applicable statute
authorizes injunctive relief. See id.

    The D.C. Circuit discussed this distinction at some length
in F.T.C. v. Weyerhaeuser Co., 665 F.2d 1072, 1081 (D.C.
Cir. 1981). Addressing 15 U.S.C. § 53(b), the D.C. Circuit
noted that the Conference Report explaining “the derivation
and purpose” of § 53(b) confirmed Congressional intent “not
to impose the traditional . . . standard of irreparable damage
14                 FTC V. PREFERRED LAW

. . .” (quoting H.R. Rep. No. 93-624 at 18, (1973), as
reprinted in 1973 U. S. C. C. A. N. 2523, 2533). The D.C.
Circuit emphasized that Congress “intended to codify the
decisional law” that “lightened the agency’s burden by
eliminating the need to show irreparable harm.” Id. at 1082.
In such cases, where the statute specifically authorizes
injunctive relief, “irreparable injury should be presumed from
the very fact that the statute has been violated.” United States
v. Hayes Int’l Corp., 415 F.2d 1038, 1045 (5th Cir. 1969). By
specifically authorizing injunctive relief upon a showing that
the statute was violated, Congress essentially incorporated a
presumption of irreparable injury into § 13(b). See id.; see
also Weyerhaeuser, 665 F.2d at 1082.

    These cases demonstrate how Winter, World Wide
Factors, and Odessa can co-exist. In the ordinary case, i.e.
one not involving statutory enforcement, the traditional
irreparable injury showing is required. On the other hand, in
a case involving statutory enforcement, where the applicable
statute authorizes injunctive relief, the traditional irreparable
injury showing is not required. Because Winter did not
address injunctive relief in the context of statutory
enforcement and because the cases can be easily reconciled,
the high standard described in Miller for invalidating prior
cases due to intervening authority has not been met. See
Robertson, 875 F.3d at 1291. Thus, our precedent eliminating
the traditional showing of irreparable harm in cases of
statutory enforcement, where the applicable statute authorizes
injunctive relief, remains intact. The district court committed
no error in presuming the existence of irreparable injury in
accordance with our precedent.
                  FTC V. PREFERRED LAW                     15

                      IV. Conclusion

    Although in the ordinary case a showing of irreparable
harm is required to obtain injunctive relief, no such showing
is required when injunctive relief is sought in conjunction
with a statutory enforcement action where the applicable
statute authorizes injunctive relief. Our precedent to that
effect does not present an irreconcilable conflict with Winter
and remains valid. The district court committed no error in
granting the motion for preliminary injunction without
requiring the FTC to make the traditional showing of
irreparable injury.

   AFFIRMED.
