Federal Trade Commission vs American Entertainment Distributors, Miriam Andreoni Smolyabhski, David Shomers , 433 F. App'x 816 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10150 ELEVENTH CIRCUIT
JULY 8, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 1:04-cv-22431-JEM
FEDERAL TRADE COMMISSION,
Plaintiff-Appellee,
versus
AMERICAN ENTERTAINMENT DISTRIBUTORS, INC., et al.,
Defendants,
MIRIAM ANDREONI SMOLYANSKI,, as personal
representative of the Estate of Anthony Rocco Andreoni,
Defendant-Appellant,
DAVID SHOMERS, et al.,
Third Party Plaintiffs.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 8, 2011)
Before HULL, PRYOR and COX, Circuit Judges.
PER CURIAM:
The Federal Trade Commission (“FTC”) filed this enforcement action against
ten defendants. The complaint charges that the defendants deceptively promoted
video rental machines as business opportunities, thereby violating § 5 of the Federal
Trade Commission Act, 15 U.S.C. § 45(a), and various provisions of the Franchise
Rule, 16 C.F.R. § 436. All claims have been resolved except those still pending
against the Estate of Anthony Rocco Andreoni.1
The Defendant Miriam Sophia Andreoni (“Andreoni”) and the FTC negotiated
a settlement over the course of a year and a half. The FTC and Andreoni then signed
a stipulated order and jointly moved the district court for entry of a final order and
permanent injunction. (Dkt. 288-1, Proposed Stipulated Order at 20; Dkt. 288,
Motion to Approve Consent Judgments.)
Three weeks after moving the court to approve this settlement, Andreoni
moved to withdraw her consent. (Dkt. 291, Motion to Withdraw Consent.) Noting
that the court had not yet approved the settlement, Andreoni’s motion asserted that,
after “extensive deliberation and consideration,” she now wished to withdraw her
consent. (Id. at 1-2.) The court, after “carefully scrutiniz[ing]” the proposed final
order, denied Andreoni’s motion to withdraw her consent, finding that “Andreoni
1
This case proceeds after certification under Fed. R. Civ. P. 54(b).
2
freely consented to and signed the agreement,” and that the agreement was “fair,
reasonable, and adequate, and that it serves the public interest.” (Dkt. 297, Order.)
Andreoni appeals.
Both parties agree that this settlement agreement required court approval
because it involved a consent judgment and an injunction. Andreoni contends that
whether a settlement agreement is a valid contract is determined by reference to state
substantive law–in this case Florida law. We agree that whether the settlement
agreement was a valid contract is determined by the substantive law of contracts of
the forum state. But, whether a settlement agreement, tested under state law, has been
accepted by a federal court and properly incorporated into a valid and enforceable
judgment is purely a question of federal procedural law. White Farm Equip. Co. v.
Kupcho, 792 F.2d 526, 529 (5th Cir. 1986).
Andreoni contends that, under Florida’s substantive contract law, the court was
not authorized to enter a consent judgment after she withdrew her consent prior to
court approval of the settlement agreement. We need not decide whether Andreoni
correctly characterizes Florida law because, as we have said, the court’s authority to
enter a consent judgment is a question of federal procedural law. And, under federal
law a court may not reject a proposed consent judgment solely because one of the
parties to a settlement no longer wishes to honor the agreement. Stovall v. City of
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Cocoa, Fla., 117 F.3d 1238, 1242 (11th Cir. 1997) (holding that, where a party had
agreed to the entry of a consent decree but moved to withdraw its consent before
entry of the decree, a district court was “not free to reject [a] consent decree solely
because [a party] no longer wished to honor its agreement.”); Allen v. Ala. State Bd.
of Educ., 816 F.2d 575, 577 (11th Cir. 1987) (reinstating consent decree, after one
party sought to withdraw from it, because the settlement agreement was binding upon
the parties).2
Andreoni’s motion to withdraw consent did not suggest–much less allege–that
she did not freely consent to and sign the settlement agreement. And the court found
that she did. Her wish to withdraw consent, therefore, was no ground for the district
court to reject the agreement.
Andreoni also presents a number of other arguments, but none of them were
adequately presented to the district court. They were raised for the first time on
appeal. We generally do not consider arguments made for the first time on appeal,
and we decline to do so here. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee
Cnty., Fla., 630 F.3d 1346, 1358 (11th Cir. 2011) (citation omitted).
2
Andreoni argues, without citation to authority, that this case should be treated differently
than other settlement agreement cases because the parties are not both private litigants. We find no
compelling reasons to distinguish our precedent on these grounds.
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Finally, Andreoni contends that the district court should have held an
evidentiary hearing before entering the stipulated judgment and injunction. The cases
cited in support of this contention, however, are distinguishable. They involve
actions where the court was required to consider the interests of third parties to be
sure they were not unfairly prejudiced by consent judgments or decrees. No such
fairness concerns are present here. And, neither party requested an evidentiary
hearing. Failure to hold a hearing under these circumstances was not an abuse of
discretion.
AFFIRMED.
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