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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10790
____________________
FEDERAL TRADE COMMISSION,
Plaintiff-Appellee,
versus
ON POINT CAPITAL PARTNERS LLC,
a limited liability company,
DRAGON GLOBAL LLC,
a limited liability company,
DRAGONGLOBAL MANAGEMENT LLC,
a limited liability company,
DRAGON GLOBAL HOLDINGS LLC,
a limited liability company,
ROBERT ZANGRILLO,
individually and as an Officer of DG DMV LLC,
Dragon Global LLC, Dragon Global Management
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2 Opinion of the Court 20-10790
LLC, Dragon Global Holdings LLC, On Point
Capital Partners LLC, and On Point Global LLC,
d.b.a. On Point, et al.,
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-25046-RNS
____________________
Before JORDAN, JILL PRYOR, and TJOFLAT, Circuit Judges.
TJOFLAT, Circuit Judge:
On December 9, 2019, the Federal Trade Commission
(“FTC”) brought suit under
15 U.S.C. § 53(b) of the Federal Trade
Commission Act (“FTCA”) against Burton Katz, Robert Zangrillo,
Brent Levison, Arlene Mahon, Elisha Rothman, Christopher Sher-
man, and fifty-four corporate entities 1 under their control, alleging
1 The corporate defendants are On Point Global LLC, On Point
Employment LLC, On Point Guides LLC formerly known as (“f/k/a”) Rogue
Media Services LLC, DG DMV LLC, On Point Domains LLC, Final Draft Me-
dia LLC, Waltham Technologies LLC, Cambridge Media Series LLC f/k/a
License America Media Series LLC, Issue Based Media LLC, Bella Vista Media
Ltd. also doing business as (“d/b/a”) BV Media, Carganet S.A. also d/b/a G8
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20-10790 Opinion of the Court 3
that they had engaged in “unfair or deceptive” business practices in
violation of
15 U.S.C. § 45(a) under the collective name of “On
Point.” That same day, the FTC filed a motion for a temporary re-
straining order against the On Point parties to freeze their assets,
place the On Point entities into a receivership, and enjoin all On
Point parties from materially misrepresenting their services or
from releasing consumer information obtained through On Point.
Operating under then binding Eleventh Circuit precedent 2 inter-
preting § 53(b), the District Court granted the motion for a tempo-
rary restraining order in full on December 13. On January 14, 2020,
following a two-day evidentiary hearing, the Court granted a pre-
liminary injunction against On Point, extending the asset freeze,
receivership, and injunction for the duration of the lawsuit. On
Labs, Dragon Global LLC, Dragon Global Management LLC, Dragon Global
Holdings LLC, Direct Market LLC, Bluebird Media LLC, Borat Media LLC,
Bring Back the Magic Media LLC, Chametz Media LLC, Chelsea Media LLC,
Coinstar Media LLC, Domain Development Studios LLC, Domain Dividends
Media LLC, Eagle Media LLC, Falcon Media LLC, GNR Media LLC, Island
Media LLC, Leatherback Media Group LLC, Macau Media LLC, CEG Media
LLC f/k/a Matzoh Media LLC, MBL Media Ltd. Inc., Orange and Blue Media
LLC, Orange Grove Media LLC, Panther Media LLC, Pirate Media LLC, Pivot
Media Group LLC, PJ Groove Media LLC, Sandman Media Group LLC,
Shadow Media LLC, Skylar Media LLC, Slayer Billing LLC, Spartacus Media
LLC, Very Busy Media LLC, Wasabi Media LLC, Yamazaki Media LLC,
Bronco Family Holdings LP a/k/a Bronco Holdings Family LP, BAL Family
LP, Cardozo Holdings LLC, 714 Media Ltd., Mac Media Ltd., On Point Capital
Partners LLC, License America Management LLC, License America Holdings
LLC, and Blackbird Media LLC.
2 See FTC v. U.S. Oil & Gas Corp.,
748 F.2d 1431, 1434 (11th Cir. 1984).
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4 Opinion of the Court 20-10790
Point now challenges this preliminary injunction on appeal under
28 U.S.C. § 1292(a).
We affirm the parts of the preliminary injunction enjoining
the appellants from misrepresenting their services and releasing
consumer information 3 for the reasons set forth below. However,
while this appeal was pending, the Supreme Court held in AMG
Capital Management that
15 U.S.C. § 53(b) does not permit an
award of “equitable monetary relief such as restitution or disgorge-
ment,” leaving the asset freeze and receivership aspects of the pre-
liminary injunction unsupported by law. AMG Cap. Mgmt., LLC
v. FTC,
141 S. Ct. 1341, 1344 (2021). As a result of this ruling, all
On Point appellants except for Dragon Global LLC (“DG”),
Dragon Global Holdings LLC (“DGH”), Dragon Global Manage-
ment LLC (“DGM”), On Point Capital Partners LLC (“OPCP”)
(collectively “Dragon Global”), and Zangrillo voluntarily dismissed
their appeal and instead sought relief from the District Court. Ac-
cordingly, we vacate the parts of the preliminary injunction sub-
jecting the remaining appellants to the asset freeze and receiver-
ship 4 to the extent the District Court has not already provided re-
lief.
I.
3 Parts I and II of the preliminary injunction.
4 Parts III through XIX of the preliminary injunction.
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20-10790 Opinion of the Court 5
We have broken the factual background of this case into
three subparts: Subpart A discusses On Point’s allegedly deceptive
activities, Subpart B discusses Zangrillo and Dragon Global’s rela-
tionship with On Point, and Subpart C discusses the procedural his-
tory of the case.
A.
Through its various corporate entities, On Point owns and
operates over two hundred websites aimed at providing the public
with information about government benefits and services. On
Point has four primary lines of business: 1) a “freemium” service
that provides free guides about public benefit and services pro-
grams in exchange for customer information, 2) a domain owner-
ship business that buys and sells valuable domain names, 3) a “pay
for clicks” business that generates revenue by enticing visitors to
click on advertisements, and 4) an e-commerce business that sells
guides and services for obtaining government benefits and services
like driver’s license renewal, passport assistance, and Section 8
housing.
The typical On Point website in the e-commerce line fo-
cused on providing information about a benefit or license in a par-
ticular state. For example, On Point operated a website known as
“floridadriverslicenses.org,” which featured an image of the state’s
border and claimed to be “Your source for [state] driver’s infor-
mation.” On Point also operated “DMV.com,” which claimed in
Facebook advertisements that “[y]ou can renew you [sic] driver li-
censes online here!! Skip the lines doing it from you [sic] home.”
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6 Opinion of the Court 20-10790
Both DMV.com and state-specific websites like floridadriv-
erslicenses.org would redirect consumers to a landing site, also
owned by On Point, where On Point would attempt to induce vis-
itors to buy paid guides or give up personal information with bold
headlines like “Renew Drivers License In Your State.”
Consumers who continued further on the landing page
would then be prompted to enter credit card information and to
“SELECT A SERVICE,” with options including “Renew Driver’s
License,” “Replace Driver’s License,” and “Reinstate Suspended Li-
cense;” depending on the option chosen, On Point would then ask
for further information such as birth date. However, once the con-
sumer completed the transaction, they received a guide to obtain-
ing the service based entirely on publicly available information; the
selected service was not actually provided through the site or the
transaction. Consumers would initially be charged a small amount
(usually $3.99 or $4.99), but several days later would be charged a
larger amount for the same purchase (usually $19.99 or $21.99). On
Point followed this general website and payment model for other
state benefits and services such as hunting and fishing licenses.
On Point also operated forty-five websites in its “freemium”
line aimed at inducing consumers to provide personal information
to determine their eligibility for programs such as housing assis-
tance, Medicaid, and unemployment benefits. For example, “sec-
tion-8-housing.org” invited consumers to “Find Out If You Are El-
igible for the Section 8 Program” and solicited consumer names,
email addresses, zip codes, phone numbers, birth dates, gender,
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20-10790 Opinion of the Court 7
employment status, health insurance coverage status, medical di-
agnoses, disability status, and debt level. Only once consumers pro-
vided all this information would they be informed that the site did
not actually determine eligibility. Instead, consumers simply re-
ceived a PDF document containing general advice for estimating
eligibility, regardless of the information provided. This consumer
information would then be sold to third parties; soon thereafter,
consumers would receive spam emails and text messages offering
services such as psychic counseling or claiming that the consumer
had won prizes in sweepstakes or was eligible for government
grants. Between January 2018 and November 2019, On Point raised
over eighty million dollars through its e-commerce line and seven-
teen million through selling consumer information.
On Point did provide some disclaimers. For example, On
Point sites disclosed at the top of each page in small, gray letters
that they were not affiliated with any government agencies or of-
fice and would describe their site in paragraphs under their bold
headlines as providing “guide[s] and resources.” On Point also pro-
vided a “notice” in a pop-up window that consumers had to click
“I understand and accept” on to proceed with their purchase. One
such notice informed consumers that:
Driving a motor vehicle without a valid driver’s li-
cense, car registration or car title may be illegal, as is
driving with expired credentials. Motor vehicle ser-
vices and applications must be processed by an official
DMV location/website. The assistance and services
on this site simplify the process by providing
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8 Opinion of the Court 20-10790
personalized guides, documents, and live support for
a fee. This site store [sic] cookies, by clicking ‘I
UNDERSTAND AND ACCEPT’ you acknowledge
the statements above and that this site is privately
owned and is not affiliated with nor endorsed by an
official agency. To aid in this task, our detailed web-
site has compiled and lists the most important infor-
mation surrounding your motor vehicle services, so
you can ensure the process is handled in a compliant
and timely manner.
However, On Point never provided a disclosure or notice that ex-
plicitly informed customers that the desired government benefit or
service could not be obtained on its websites. Nor were consumers
entering personal information told that information would be sold
to third parties; they were simply provided with a statement that
their use of the site constituted “express written consent for [site]
and our Marketing Partners to contact” the consumer.
As a result of these practices, hundreds of consumers sub-
mitted complaints to the FTC, other law-enforcement organiza-
tions, and the Better Business Bureau, claiming that On Point had
misrepresented their services as providing actual government ben-
efits, not just guides. Furthermore, a consumer survey 5 commis-
sioned by the FTC found that most visitors to an On Point websites
5 The survey was conducted by Dr. Michelle Mazurek of the Univer-
sity of Maryland, a computer-science professor who specializes in empirical
studies of human-computer interaction.
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20-10790 Opinion of the Court 9
believed On Point could actually provide government benefits or
services, not just guides.
On Point also took steps to prevent paying customers from
receiving refunds and to hide the number of credit-card charge-
backs On Point was receiving from credit-card processors. Despite
having a money-back guarantee, customers who requested a re-
fund directly from On Point rarely received one. For example,
when an undercover FTC agent purchased an On Point guide and
then requested a refund, On Point offered only to refund the later
$19.99 charge, not the initial $4.99 charge (characterized as a “pro-
cessing fee”); On Point never actually refunded either.
In contrast, customers who instead chose to dispute their
purchase directly with credit-card processors such as Visa often suc-
ceeded. For On Point, this was a serious problem; businesses that
exceeded set limits for chargeback rates were subject to account
monitoring, suspension, and termination, and On Point consist-
ently exceeded these limits – over the course of three years, On
Point triggered Visa’s threshold sixty-four times. Indeed, several
credit-card processors did terminate On Point accounts. To limit
these consequences, On Point created various companies selling
identical products on similar websites to reduce the number of
credit-card chargebacks originating from any particular site, a prac-
tice known as “load balancing.” On Point’s practice of dividing
charges into two installments, an initial “processing fee” and a
larger, substantial fee later, also served to disguise the number of
chargebacks; when customers disputed one of the charges, On
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10 Opinion of the Court 20-10790
Point would have a fifty percent chargeback-to-successful sales ra-
tio, not a hundred percent ratio.
B.
Robert Zangrillo, the last remaining individual appellant, is
a private equity, venture capital, and real estate investor who con-
ducts business under the Dragon Global name through the four re-
maining corporate appellants. Of these, DGM is Zangrillo’s man-
agement entity with four full-time employees that handles the day-
to-day operations of Dragon Global’s investments, DGH is the pri-
mary investment vehicle for the Zangrillo family, 6 OPCP is the spe-
cial-purpose vehicle used by DGH to invest in the On Point enter-
prise, and DG is a largely defunct entity with no assets. OPCP
owned an approximately twenty-eight percent interest in On Point
Global, LLC, a holding company. OPCP was one of the two mem-
bers with the largest ownership interests in the holding company,
the other member being controlled by Katz.
Dragon Global’s leadership, known collectively as the “Ven-
ture Team,” consisted of Zangrillo, Katz, and another investor
named Bob Bellack. The Venture Team also formed the core lead-
ership of On Point: Zangrillo served as a consultant and the Chair-
man of On Point’s Board of Managers (“the Board”) until March
6 DGH has three members: Zangrillo, who owns a seventy-four per-
cent stake, a trust for the benefit of Zangrillo’s daughters that owns a twenty-
five percent stake, and a general partner entity owned by Zangrillo that has a
one percent stake.
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20-10790 Opinion of the Court 11
2019, when he was indicted in an unrelated college-entrance brib-
ery scheme,7 Katz served as On Point’s CEO and as a board mem-
ber, and Bellack served as On Point’s CFO. While Dragon Global
had investments in both major companies such as Facebook, Twit-
ter, and Uber, and minority “seed” investments in newly formed
companies, at the time On Point was Dragon Global’s only “early-
stage control” investment. Dragon Global’s website described
early-stage control investments as “seek[ing] to take controlling,
majority ownership stakes” in the company in order to “fully lev-
erage the broad experience of [Dragon Global’s] Operating Part-
ners,” the Venture Team.
Zangrillo and Katz also had “Special Approval Rights” over
On Point. These rights provided that On Point and its subsidiaries
could not perform a variety of actions, including, but not limited
to, dispersing company assets outside the normal course of busi-
ness; approving a budget; engaging bankers; or hiring or terminat-
ing On Point’s President, CEO, or CFO without prior written ap-
proval from both Zangrillo and Katz. The Special Approval Rights
essentially gave both Zangrillo and Katz a veto over major com-
pany decisions, above and beyond the control they already exer-
cised by sitting on the Board.
Zangrillo and one of Dragon Global’s four full-time employ-
ees, Megan Black, also performed extensive services for On Point.
7 See United States v. Sidoo,
471 F. Supp. 3d 369 (D. Mass. 2020) (sum-
marizing the indictment).
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12 Opinion of the Court 20-10790
Zangrillo entered into a consulting agreement with On Point to
last from January 1, 2018, until December 31, 2019. Pursuant to this
agreement, Zangrillo assisted On Point with raising capital, collect-
ing fees, coordinating and attending investor meetings, reviewing
slides about On Point for investor meetings, and updating investors
as to the status of their investments. Black assisted Zangrillo in
these endeavors and was put on On Point’s payroll from February
2018 to July 2018. Additionally, both Zangrillo and Black were put
on On Point’s payroll and company health insurance during the
month of January 2019. However, Black claims she was never an
employee of On Point.
The FTC contends that Dragon Global and On Point shared
office space in Miami and Los Angeles; Dragon Global disputes
both claims. For the Miami address, the FTC claims Zangrillo
shared a corner office with Katz and Bellack, which Zangrillo and
Dragon Global deny. In support, the FTC notes that Zangrillo
owns the building through one of his real estate companies, has the
building listed as Dragon Global’s address on LinkedIn, and that
the only other addresses Dragon Global ever listed are a UPS store
and a Dragon Global employee’s house. In contrast, Dragon Global
points to a declaration by Black where she states that “to [her]
knowledge, Dragon Global has never ran [sic] business at that ad-
dress, and has never received mail at that address.” Most signifi-
cantly, both the FTC and Zangrillo point to two separate sets of
seating charts admitted as evidence at the preliminary injunction
hearing: one, prepared by an FTC investigator when the FTC
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20-10790 Opinion of the Court 13
searched the Miami office in December 2019, lists only Katz and
Bellack as sharing the corner office, while the other, taken during
the December search from an employee’s desk, lists Katz, Bellack,
and Zangrillo as occupying the corner office.
In Los Angeles, Dragon Global subleased part of its office to
On Point, storing On Point records and giving On Point employees
access to the office. However, Zangrillo still used the office and
continued to have Dragon Global’s name on the door, although
On Point requested that its name be added. Additionally, On Point
often paid rent to the building owner on behalf of Dragon Global,
and other companies also subleasing parts of the Los Angeles office
from Dragon Global sometimes paid their rent to On Point, noting
the rent was for Dragon Global.
C.
This case began with the FTC filing a complaint under
15
U.S.C. § 53(b) on December 9, 2019, against the individuals and en-
tities involved in the On Point enterprise. On December 13, the
District Court granted a temporary restraining order against the
On Point parties, freezing their assets, placing the corporate de-
fendants into a receivership, and enjoining all defendants from mis-
representing their services or releasing consumer information ob-
tained from On Point’s activities. A month later, the Court held a
two-day evidentiary hearing on January 10 and 13, 2020; in total,
the Court spent over fifteen hours examining the evidence. At the
close of the January 13 hearing, the Court made an oral finding that
the corporate entities were in a common enterprise and that the
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14 Opinion of the Court 20-10790
individual defendants had “sufficient control and knowledge to
make them responsible.” On January 14, the Court granted a pre-
liminary injunction with substantially the same terms as the tem-
porary restraining order against On Point and Dragon Global, from
which On Point and Dragon Global filed separate appeals.
Concurrently with its actions in this case, the FTC also reo-
pened proceedings against Katz in a 2014 case, FTC v. Acquinity
Interactive (“Acquinity”). In Acquinity, the FTC alleged that Katz
used spam text messages to lure consumers into disclosing personal
information and making purchases with offers of free merchandise
such as $1000 gift cards or Apple iPads. The FTC and Katz agreed
to the issuance of a consent decree in Acquinity whereby Katz was
permanently enjoined from making materially misleading repre-
sentations about the “cost, performance, efficacy, nature, charac-
teristics, benefits, or safety of any product or service.” Additionally,
the consent decree specified that the permanent injunction applied
to any person “in active concert or participation” with Katz who
received “actual notice” of the injunction.
On February 12, 2020, the FTC moved the District Court in
Acquinity for an order to show cause why Katz should not be held
in contempt for violating the Acquinity permanent injunction
through his activities with On Point. The FTC also alleged that var-
ious corporate entities in this case, including DG, DGM, and DGH,
had actual notice of the Acquinity permanent injunction and had
acted in concert with Katz to violate the injunction. See Fed. R.
Civ. P. 65(d)(2). Therefore, the FTC asked the Court to require
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20-10790 Opinion of the Court 15
those entities to show cause for why they should not be held in
contempt as well. On February 14, the Court ordered both Katz
and the named entities to show cause for why they should not be
held in contempt.
On September 18, 2020, the District Court released DGM
from the receivership in this case based on the recommendation of
the receiver. On October 15, the Court also released DG from the
receivership in this case based on the recommendation of the re-
ceiver. This left only two Dragon Global entities, DGH and OPCP,
in the On Point receivership.
On April 22, 2021, the Supreme Court held in AMG Capital
Management that
15 U.S.C. § 53(b) does not permit an award of
equitable monetary relief such as restitution or disgorgement, set-
ting off a chain reaction of motions in both the On Point and Ac-
quinity cases. See AMG Cap. Mgmt., 141 S. Ct. at 1347–48. On April
23, the individual On Point defendants, Katz, Zangrillo, Brent Levi-
son, Arlene Mahon, Elisha Rothman, and Christopher Sherman,
moved to lift the asset freeze as to themselves. In response, on April
30 the FTC moved in Acquinity for an order to show cause why
Zangrillo, Levison, and Rothman should not be held in contempt
for violating the Acquinity injunction against Katz. The FTC also
sought in Acquinity a preliminary injunction to impose an asset
freeze against Zangrillo, Katz, Levison, Rothman, and the various
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16 Opinion of the Court 20-10790
named corporate entities to preserve funds for money damages in
a future contempt hearing. 8
On July 19, 2021, we granted Katz, Sherman, and the On
Point corporate entities’ voluntary motion to terminate their ap-
peal of the District Court’s January 14, 2020, preliminary injunction
in On Point. This left only Zangrillo, DG, DGM, DGH, and OPCP
as parties to this appeal.
On August 13, 2021, the District Court ruled on both the Ac-
quinity and On Point motions. In Acquinity, the Court granted the
requested preliminary injunction and imposed an asset freeze on
Katz, Levison, Rothman, and the named corporate entities, includ-
ing DG, DGM, and DGH. The Acquinity asset freeze contains the
same terms and covers the same property as the On Point asset
freeze; indeed, the Court amended the Acquinity asset freeze on
August 18 to ensure the two asset freezes were identical. However,
the Court found that Zangrillo lacked actual notice of the Acquin-
ity injunction and so excluded him from the Acquinity asset freeze.
See Fed. R. Civ. P. 65(d)(2). In On Point, the Court released all de-
fendants from the asset freeze except those whom the Court listed
as subject to the asset freeze in Acquinity, holding that the Acquin-
ity asset freeze made the issue moot as to them. Notably, the Court
8 Essentially, the FTC used its show cause motion under the 2014 Ac-
quinity permanent injunction as the platform for moving the District Court to
issue a new preliminary injunction in Acquinity against parties who were
never defendants in the original Acquinity case.
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20-10790 Opinion of the Court 17
lists DG, DGM, and DGH as subject to the Acquinity asset freeze
in the Acquinity preliminary injunction, but only lists DGH as sub-
ject to the Acquinity asset freeze in the On Point order. This leaves
some doubt as to whether DG and DGM are still subject to the On
Point asset freeze, although they are clearly subject to the Acquin-
ity asset freeze. The Court did not create a receivership in Acquin-
ity nor affect the receivership in On Point with these orders.
On September 29, 2021, the District Court acted again in
both Acquinity and On Point. In Acquinity, the Court granted sum-
mary judgment in favor of Dragon Global on the show cause for
contempt motion, finding that Dragon Global both lacked actual
notice of the 2014 Acquinity permanent injunction against Katz and
that Dragon Global did not act in “active concert or participation”
with Katz. In On Point, the Court also granted summary judgment
in favor of Dragon Global, finding that Dragon Global was not in a
common enterprise with On Point and thus not responsible for On
Point’s activities. However, the Court found that there were “gen-
uine disputes of material facts” regarding whether Zangrillo could
be held responsible for On Point’s activities and so denied his mo-
tion for summary judgment. Yet despite these orders and to the
best of this Court’s knowledge based on our review of the Acquin-
ity and On Point dockets, the District Court has not yet entered an
order vacating or amending the preliminary injunctions in either
Acquinity or On Point as a result of its September 29 orders. There-
fore, the preliminary injunctions in both cases appear to remain as
they were following the August 13 orders.
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18 Opinion of the Court 20-10790
To summarize, this leaves DGH subject to the asset freezes
in Acquinity and On Point and to the On Point receivership, DG
and DGM subject to the asset freeze in Acquinity and possibly also
in On Point but not to the On Point receivership, OPCP subject to
the On Point receivership but neither of the asset freezes, and
Zangrillo subject to neither asset freeze. Furthermore, all five re-
maining appellants are still enjoined by the On Point preliminary
injunction from materially misrepresenting On Point’s services or
releasing customer information obtained from the On Point enter-
prise to third parties.
II.
A preliminary injunction is an “extraordinary remedy never
awarded as of right.” Winter v. Nat. Res. Def. Council, Inc.,
555
U.S. 7, 24,
129 S. Ct. 365, 376 (2008). We review a district court’s
grant of a preliminary injunction for abuse of discretion. Demo-
cratic Exec. Comm. of Fla. v. Lee,
915 F.3d 1312, 1317 (11th Cir.
2019); see also Carillon Imps., Ltd. v. Frank Pesce Int’l Grp., Ltd.,
112 F.3d 1125, 1126 (11th Cir. 1997) (“The review of a district
court’s decision to grant or deny a preliminary injunction is ex-
tremely narrow in scope”). We review the preliminary injunction’s
underlying legal conclusions de novo and its findings of fact for
clear error. Democratic Exec. Comm., 915 F.3d at 1317.
As mootness is a jurisdictional issue, we may review ques-
tions of mootness sua sponte. Nat’l Advert. Co. v. City of Miami,
402 F.3d 1329, 1331–32 (11th Cir. 2005). “We review the question
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20-10790 Opinion of the Court 19
of mootness de novo.”
Id. at 1331 (quoting Coral Springs St. Sys.,
Inc. v. City of Sunrise,
371 F.3d 1320, 1328 (11th Cir. 2004).
III.
Prior to AMG Capital Management, Eleventh Circuit prece-
dent interpreted
15 U.S.C. § 53(b) as not limiting the traditional eq-
uitable powers of the district courts, including the power to grant
monetary relief. See FTC v. U.S. Oil & Gas Corp.,
748 F.2d 1431,
1434 (11th Cir. 1984). Therefore, district courts could implement
preventative measures, such as asset freezes, in preliminary injunc-
tions to preserve resources “needed to make permanent relief pos-
sible,” i.e., to satisfy a future monetary judgment.
Id. However, in
AMG Capital Management the Supreme Court held that § 53(b)
does not allow district courts to grant “equitable monetary relief
such as restitution or disgorgement,” thereby abrogating U.S. Oil
& Gas. See AMG Cap. Mgmt., 141 S. Ct. at 1344. As monetary relief
is no longer available under § 53(b), there is no need to preserve
resources for a future judgment. Consequently, the imposition of
an asset freeze or receivership premised solely on § 53(b) is inap-
propriate and we vacate the portions of the District Court’s prelim-
inary injunction imposing these restrictions on Dragon Global to
the extent the Court has not already provided relief.
We note that this decision directly applies only to Zangrillo
and Dragon Global, as all other appellants have chosen to volun-
tarily dismiss their appeal. Furthermore, nothing in this opinion
should be construed as commenting on or having a legal effect on
the separate asset freeze in Acquinity, as that case is not properly
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20 Opinion of the Court 20-10790
before us on appeal. Since we reach this result based on the holding
in AMG Capital Management, we need not address any of Dragon
Global’s other arguments for relief from the asset freeze and receiv-
ership.
We recognize that the separate asset freeze imposed on DG,
DGM, and DGH in the related Acquinity matter may limit the
short-term practical effect of this decision. However, despite the
District Court and FTC’s assertions to the contrary, the imposition
of a separate asset freeze on the same parties in a related case, even
an asset freeze with identical terms covering the same property,
does not moot the question of whether the asset freeze and receiv-
ership is lawful in this case. An issue only becomes moot when “the
parties lack a legally cognizable interest in the outcome.” Chafin v.
Chafin,
568 U.S. 165, 172,
133 S. Ct. 1017, 1023 (2013) (quoting Al-
ready, LLC v. Nike, Inc.,
568 U.S. 85, 91,
133 S. Ct. 721, 726 (2013)).
Any “concrete interest, however small, in the outcome of the liti-
gation” is sufficient to prevent a case from becoming moot.
Id.
(quoting Knox v. Serv. Emps. Int’l Union, Loc. 1000,
567 U.S. 298,
307–08,
132 S. Ct. 2277, 2287 (2012)). Lifting the unlawful asset
freeze and receivership in this case is a necessary condition for
Dragon Global to regain the use and control of its property, even
if it is not sufficient in and of itself. Furthermore, until the asset
freeze and receiverships are terminated by court order, they con-
tinue to remain in force. Therefore, Dragon Global continues to
have a legally cognizable interest in lifting the On Point asset freeze
and receivership and this aspect of the appeal is not moot.
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20-10790 Opinion of the Court 21
With the asset freeze and receivership dealt with by AMG
Capital Management, the only remaining question is whether the
District Court abused its discretion by enjoining Zangrillo and
Dragon Global from misrepresenting their services or releasing
customer information. Prospective injunctive relief is still allowed
under § 53(b). See AMG Cap. Mgmt., 141 S. Ct. at 1347–48.
Zangrillo and Dragon Global challenge (1) the Court’s finding that
the FTC will likely succeed on the merits and that the balance of
equities favors a preliminary injunction, (2) the sufficiency of the
findings of fact issued by the Court, (3) the Court’s finding that
Dragon Global participated in a common enterprise with On
Point, 9 and (4) the Court’s finding that Zangrillo was individually
9 We recognize that the District Court granted summary judgment in
favor of Dragon Global on September 29, 2021, on the question of whether
Dragon Global was in a common enterprise with On Point. However, in this
appeal from the preliminary injunction order, we are reviewing only whether
the FTC made a “proper showing” at the time of the order to support the
District Court’s grant of the preliminary injunction. See
15 U.S.C. § 53(b). As
more evidence is introduced and arguments are held over the course of the
litigation, the District Court may, of course, change its mind and come to a
different conclusion than the one it reached at the preliminary injunction hear-
ing. Nevertheless, until the preliminary injunction is vacated by court order,
this appeal remains live. In this opinion, we answer only the question of
whether the District Court could have found that Dragon Global was in a
common enterprise with On Point based on the evidence introduced at the
preliminary injunction hearing held in January 2020. Nothing in this opinion
should be construed as preventing the District Court from terminating or
modifying that preliminary injunction at a later date.
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22 Opinion of the Court 20-10790
responsible for the actions taken by On Point. We address each ar-
gument in turn.
A.
Under the FTCA, a district court may grant a preliminary
injunction in an enforcement action by the FTC “[u]pon a proper
showing that, weighing the equities and considering the Commis-
sion’s likelihood of ultimate success, such action would be in the
public interest.”
15 U.S.C. § 53(b). To succeed on the merits under
15 U.S.C. § 45(a), the FTC must show that “(1) there was a repre-
sentation; (2) the representation was likely to mislead customers
acting reasonably under the circumstances, and (3) the representa-
tion was material.” FTC v. Tashman,
318 F.3d 1273, 1277 (11th Cir.
2003).
The District Court had ample evidence to conclude that the
FTC has shown all three elements. The Court found that On Point
had “misrepresented on [its] websites that [it] would provide gov-
ernment services (e.g., a driver’s license, car registration, or eligi-
bility determination for public benefits) to consumers who paid
money and/or provided personal information.” This finding was
based on the Court’s determination that:
The websites were cleverly designed so that even
though disclosures appeared on many or most of the
pages, consumer attention would be drawn to links
and language in larger, more colorful font that di-
rected them to the service they were seeking (such as
renewing a driver’s license) and most consumers
USCA11 Case: 20-10790 Date Filed: 11/04/2021 Page: 23 of 33
20-10790 Opinion of the Court 23
would likely ignore the disclosures written in rela-
tively smaller and pale-colored font. And, if a con-
sumer 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 in-
formed that they could not obtain the government
service they were misled to believe was available to
them.
Having reviewed the record, we cannot say that this determination
is clear error. On Point’s websites could easily be perceived by un-
wary visitors as promising government services or benefits, with
options such as “Renew Driver’s License,” “Replace Driver’s Li-
cense,” and “Reinstate Suspended License” on an official-sounding
website like “DMV.com” lending itself to that impression. Indeed,
On Point’s advertisements occasionally outright promised con-
sumers they could obtain services at home, telling consumers to
“skip the lines doing it from you [sic] home.” The eligibility web-
sites face similar problems, telling consumers to “find out” if
they’re eligible for government benefits and then soliciting a great
deal of personal information necessary for determining eligibility,
only to offer generic advice once the information is provided. Nor
were the disclosures sufficient to disabuse consumers of this im-
pression, being either too small or too vague to dispel the misrep-
resentations otherwise created by the websites.
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24 Opinion of the Court 20-10790
The District Court also had sufficient evidence to find that
the websites were not just likely to mislead consumers, but actively
doing so, with hundreds of consumer complaints, a history of reg-
ular chargebacks, and a consumer survey to rely on. Furthermore,
On Point’s misrepresentations were clearly material, either induc-
ing consumers to purchase guides in the belief they were obtaining
benefits or to surrender sensitive personal information to obtain an
eligibility determination. As such, the Court could properly find
that the FTC was likely to ultimately succeed on the merits.
Having determined that On Point’s activities were materi-
ally misleading the public, the District Court was within its discre-
tion to conclude that a preliminary injunction was necessary. To
begin with, “judgments . . . about the viability of a plaintiff’s claims
and the balancing of equities and the public interest . . . are the dis-
trict court’s to make.” BellSouth Telecomms., Inc. v. MCIMetro
Access Transmission Servs., LLC,
425 F.3d 964, 968 (11th Cir. 2005)
(quoting Cumulus Media v. Clear Channel Commc’ns, Inc.,
304
F.3d 1167, 1171 (11th Cir. 2002)). We will not lightly disturb this
balancing of the equities, particularly when supported by factual
findings drawn from two full days of evidentiary hearings.
Zangrillo and Dragon Global’s main objection, that the hardships
imposed by the asset freeze and receivership outweighed the po-
tential public benefit of a preliminary injunction, is moot now that
we have lifted the asset freeze and receivership. Therefore, the
Court did not abuse its discretion by imposing a preliminary injunc-
tion as the FTC will likely succeed on the merits and the public
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20-10790 Opinion of the Court 25
interest weighs in favor of halting the materially misleading prac-
tices.
B.
Rule 52(a) of the Federal Rules of Civil Procedure requires
that district courts make “findings of fact and conclusions of law”
when issuing an injunction. Snook v. Tr. Co. of Ga. Bank of Savan-
nah,
859 F.2d 865, 872 (11th Cir. 1988). Findings of fact must be
sufficient to allow the reviewing court “an opportunity to engage
in meaningful appellate review.” Danley v. Allen,
480 F.3d 1090,
1091 (11th Cir. 2007). Oral findings are allowed so long as they are
made “on the record after the close of evidence.” See Fed. R. Civ.
P. 52(a).
The District Court did not include its findings on common
enterprise and individual responsibility in its written order. Instead,
the Court issued oral findings at the close of the evidentiary hear-
ing, stating:
After considering the written submissions of the par-
ties, the testimony, and all the evidence that was pre-
sented, I find that the FTC has met its burden as to
both the entities and the individual defendants. I find
that there has been a showing that there was a com-
mon enterprise based upon shared control[], shared
offices, shared payroll, commingled funds, [and] that
the individuals, the government has shown that each
of them had sufficient control and knowledge to
make them responsible.
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26 Opinion of the Court 20-10790
Zangrillo and Dragon Global contend that this statement was not
a sufficiently detailed factual finding under Rule 52(a) and that
therefore the Court abused its discretion by including Zangrillo
and Dragon Global in the preliminary injunction.
We disagree. District court findings need not be extensive.
A “judge need only make brief, definite, pertinent findings and con-
clusions upon the contested matters; there is no necessity for over-
elaboration of detail or particularization of facts.” Stock Equip. Co.
v. Tenn. Valley Auth.,
906 F.2d 583, 592 (11th Cir. 1990) (quoting
Fed. R. Civ. P. 52, Advisory Committee Note (1946)). So long as
there is “sufficient record evidence to support the findings, [district
courts] need not ‘state the evidence or any of the reasoning upon
the evidence.’”
Id. (quoting Petterson Lighterage & Towing Corp.
v. N.Y. Cent. R.R.,
126 F.2d 992, 996 (2d Cir. 1942)). The District
Court identified the precise factors which led to its determination
that the corporate defendants were in a common enterprise with
each other and that the individual defendants were individually re-
sponsible under the FTCA. Furthermore, the Court did not merely
list all the potential factors, but excluded those for which it found
insufficient evidence, such as coordinating advertising or direct par-
ticipation. See infra Parts III.C and III.D. The Court also based its
findings upon “the written submissions of the parties, the testi-
mony, and all the evidence that was presented,” which, in the con-
text of the statement, refers to the evidence presented during the
two days of evidentiary hearings. Together, these statements ena-
ble meaningful appellate review under Rule 52(a); we know what
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20-10790 Opinion of the Court 27
factors led the Court to making its determination and what evi-
dence it considered when doing so. Accordingly, we proceed with
our review of the Court’s findings.
C.
We have previously recognized that corporate entities can
be responsible under the FTCA for each other’s actions through
the common enterprise doctrine. FTC v. WV Universal Mgmt.,
LLC,
877 F.3d 1234, 1240 (11th Cir. 2017). However, we have never
officially endorsed a test for determining whether a common en-
terprise exists under the FTCA. Both the FTC and Dragon Global
rely on the test we used in an unpublished case, FTC v. Lanier Law,
LLC, 715 F. App’x 970, 979–80 (11th Cir. 2017). Lanier Law found
that a corporate entity can be responsible for the actions of other
corporations in a business venture when “the structure, organiza-
tion, and pattern of a business venture reveal a common enterprise
or a maze of integrated business entities.”
Id. (quoting FTC v.
Wash. Data Res.,
856 F. Supp. 2d 1247, 1271 (M.D. Fla. 2012)). La-
nier Law then lists several factors for determining whether a com-
mon enterprise exists, such as whether the businesses operated un-
der common control, shared office space and employees, commin-
gled funds, and coordinated advertising. Lanier Law, 715 F. App’x
at 980. This test has been officially adopted by the Sixth Circuit and
is already employed by district courts within our circuit. See FTC
v. E.M.A. Nationwide, Inc.,
767 F.3d 611, 636–37 (6th Cir. 2014);
see e.g., FTC v. Simple Health Plans LLC,
379 F. Supp. 3d 1346,
1363 (S.D. Fla. 2019), aff’d 801 F. App’x. 685 (11th Cir. 2020); FTC
USCA11 Case: 20-10790 Date Filed: 11/04/2021 Page: 28 of 33
28 Opinion of the Court 20-10790
v. Roca Labs, Inc.,
345 F. Supp. 3d 1375, 1399 (M.D. Fla. 2018); FTC
v. NPB Advert., Inc.,
218 F. Supp. 3d 1352, 1362 (M.D. Fla. 2016);
FTC v. Nat’l Urological Grp., Inc.,
645 F. Supp. 2d 1167, 1182 (N.D.
Ga. 2008), aff’d 356 F. App’x 358 (11th Cir. 2009). We now adopt
this test as well.
Of course, when the FTC brings an enforcement action un-
der § 53(b), it is not authorized to recover equitable monetary re-
lief. AMG Cap. Mgmt., 141 S. Ct. at 1344. The FTC may recover
civil monetary relief under a common enterprise theory only if the
FTC first pursues administrative proceedings, obtains a cease-and-
desist order, and then brings the civil action. See id. at 1346 (citing
15 U.S.C. §§ 45(l), 57(b)). However, a common enterprise theory
may still be used to disregard corporateness when granting injunc-
tive relief. See E.M.A. Nationwide Inc., 767 F.3d at 619, 636–37 (af-
firming both restitution and a permanent injunction against multi-
ple corporate defendants based on a common enterprise theory).
Therefore, we will continue with our analysis about whether
Dragon Global was in a common enterprise with On Point for the
purpose of injunctive relief under § 53(b).
The District Court did not commit clear error by finding
that Dragon Global was part of a common enterprise with On
Point based on common control, shared office space and employ-
ees, and commingled funds. Under common control, Dragon
Global and On Point’s leadership heavily overlapped. Dragon
Global’s three “Venture Team” partners, Katz, Zangrillo, and Bel-
lack, each occupied important positions within On Point,
USCA11 Case: 20-10790 Date Filed: 11/04/2021 Page: 29 of 33
20-10790 Opinion of the Court 29
respectively CEO, Chairman of the Board, and CFO. Additionally,
Katz and Zangrillo together controlled a majority stake in On
Point, sat on the Board, and exercised “Special Approval Rights”
over On Point. While other investors certainly participated in On
Point, Dragon Global’s Venture Team was clearly in control. In-
deed, this behavior aligns with Dragon Global’s “early-stage con-
trol” investment model, whereby Dragon Global would take “con-
trolling, majority ownership stakes” to “fully leverage the broad
experience” of the Venture Team. Dragon Global claims that this
behavior is simply common practice for investors. Perhaps this is
true – but it does not make Dragon Global’s control over On Point
any less real.
Dragon Global contends that it did not share office space
with On Point in either Miami or Los Angeles, and there is certainly
a factual dispute on the matter. In Miami, the FTC points towards
the office being listed as both On Point’s and Dragon Global’s ad-
dress on LinkedIn and a seating chart showing that Zangrillo, Katz,
and Bellack shared a corner office, while Dragon Global responds
with an affidavit from a Dragon Global employee stating the com-
pany never operated out of Miami and its own seating chart show-
ing only Katz and Bellack shared the corner office. Likewise, in Los
Angeles, On Point and Dragon Global did share an office and paid
and accepted rent interchangeably, but Dragon Global emphasizes
that this was all pursuant to an “arms-length” sublease agreement.
Luckily, we do no need to decide whether On Point and Dragon
Global actually shared office space. That is the job of the finder of
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30 Opinion of the Court 20-10790
fact. We need only decide whether there was sufficient evidence in
the record to support the District Court’s finding that On Point and
Dragon Global did share office space. Determining which seating
chart to believe, assessing the credibility of an affidavit by a Dragon
Global employee, and exploring the precise relationship between
On Point and Dragon Global in the Los Angeles office is the prov-
ince of the trial court, and we find that there is sufficient evidence
to support the Court’s determination that On Point and Dragon
Global did share office space.
Dragon Global claims that it did not share employees with
On Point because Black and Zangrillo were not “official” employ-
ees of On Point, despite working with On Point for several months
and being placed on On Point’s payroll and health insurance. If this
was the test for shared employees in the common enterprise con-
text, companies could avoid this factor merely through labeling.
Furthermore, if Black and Zangrillo were not employees, then that
is simply evidence of commingling funds instead. In either case, the
two other Venture Team members, Katz and Bellack, were cer-
tainly employees of On Point as the CEO and CFO respectively.
Likewise, On Point and Dragon Global did commingle funds by
interchangeably paying and accepting rent for the Los Angeles of-
fice. Therefore, we affirm the District Court’s determination that
On Point and Dragon Global were in a common enterprise based
on common control, shared office space and employees, and com-
mingled funds.
D.
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20-10790 Opinion of the Court 31
For an individual to be responsible under the FTCA for the
wrongdoings of a corporation, the FTC must show that the indi-
vidual had “some knowledge of the practices” and that the individ-
ual either “participated directly in the practice or acts or had the
authority to control them.” FTC v. Gem Merch. Corp.,
87 F.3d 466,
470 (11th Cir. 1996) (internal quotation marks omitted). As with
corporate responsibility under a common enterprise theory, indi-
vidual responsibility under
15 U.S.C. § 53(b) no longer includes eq-
uitable monetary relief; however, individuals may still be enjoined
under § 53(b) for the actions of corporations should the FTC estab-
lish knowledge and either participation or the authority to control.
See FTC v. IAB Mktg. Assocs., LP,
746 F.3d 1228, 1233 (11th Cir.
2014) (affirming the application of a preliminary injunction includ-
ing both injunctive and monetary relief to individual defendants).
The District Court found that Zangrillo had “sufficient con-
trol and knowledge to make [Zangrillo] responsible” for the actions
of On Point. As Chairman of the Board and a “consultant” who
regularly gave presentations to potential investors, Zangrillo was
certainly aware of On Point’s lines of business and the revenue each
line generated. Zangrillo claims that he was only involved in high-
level decision making and had no knowledge of or control over the
contents of On Point’s websites. In fact, the slides Zangrillo pre-
pared for his presentations listed each of On Point’s services and
how they fit into On Point’s business model. These slides described
DMV.com as On Point’s “FLAGSHIP” website and named various
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32 Opinion of the Court 20-10790
state drivers’ licenses websites that On Point operated. The slides
also included screenshots from some of On Point’s websites.
Zangrillo also likely knew that On Point made over eighty
million dollars in two years selling “guides” on government ser-
vices, and it almost beggars belief that he would be completely un-
aware of how On Point’s websites were raising that quantity of
money. Even assuming Zangrillo never once visited an On Point
website, his presentation slides show that Zangrillo knew On Point
was capturing a great deal of personal information (which On Point
sold for over seventeen million dollars) despite supposedly offering
only guides drawn from publicly available information. Zangrillo
would also need to have been completely unaware of the persistent
problems On Point faced with credit-card processors and charge-
backs, problems which resulted in the termination of several On
Point accounts and the creation of various On Point companies to
minimize the problem through load-balancing. Taken together,
this information is sufficient for the District Court to find that
Zangrillo likely had “some knowledge” of On Point’s deceptive ac-
tivities.
Zangrillo also had the authority to control On Point’s activ-
ities. He was the Chairman of the Board, a major investor, one of
On Point’s primary fundraisers, and had special approval rights
over many of On Point’s activities. Zangrillo’s contention that he
was neither an officer of the company nor managed its day-to-day
affairs is irrelevant; the true question is whether he had the “au-
thority to control” On Point’s activities or, in other words, whether
USCA11 Case: 20-10790 Date Filed: 11/04/2021 Page: 33 of 33
20-10790 Opinion of the Court 33
Zangrillo could have ended the deceptive practices. Gem Merch.
Corp.,
87 F.3d at 470. Besides only Katz, Zangrillo had the most
authority of anyone in On Point, and should he have chosen to ex-
ercise that authority, he likely “could have nipped the offending
[activities] in the bud.” FTC v. Direct Mktg. Concepts, Inc.,
624
F.3d 1, 13 (1st Cir. 2010). Therefore, we affirm the District Court’s
finding that Zangrillo was individually responsible for the actions
of On Point.
IV.
For the reasons set forth above, we AFFIRM the parts of the
preliminary injunction enjoining Zangrillo and Dragon Global
from engaging in deceptive practices or releasing consumer infor-
mation, VACATE the asset freeze and receivership as to Dragon
Global to the extent the District Court has not already provided
relief, and REMAND this case for further proceedings consistent
with this opinion.10
AFFIRMED IN PART, VACATED IN PART.
10 We deny as MOOT the pending Motion for Leave to Adopt Portions
of Reply Brief.
