FTC v. Gary Hewitt ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FEDERAL TRADE COMMISSION, No. 21-56037
Plaintiff-Appellee, D.C. No.
2:09-cv-04719-
v. MWF-CW
GARY HEWITT,
OPINION
Defendant-Appellant,
and
JOHN BECK AMAZING PROFITS,
LLC, a California limited liability
company; JOHN ALEXANDER,
LLC, a California limited liability
company; JEFF PAUL, LLC, a
California limited liability company;
MENTORING OF AMERICA, LLC,
a California limited liability company;
FAMILY PRODUCTS, LLC, a
California limited liability company;
DOUGLAS GRAVINK; JOHN
BECK; JOHN ALEXANDER; JEFF
PAUL,
Defendants.
2 FTC V. HEWITT
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted February 16, 2023
Pasadena, California
Filed May 11, 2023
Before: Diarmuid F. O’Scannlain, Andrew D. Hurwitz,
and Bridget S. Bade, Circuit Judges.
Opinion by Judge O’Scannlain
SUMMARY *
Fed. R. Civ. P. 60(b)
The panel affirmed the district court’s denial of Gary
Hewitt’s Fed. R. Civ. P. 60(b) motion for relief from an
equitable money judgment, in a case in which the district
court in 2012 granted summary judgment to the Federal
Trade Commission, holding that a scam by Hewitt violated
Section 5 of the Federal Trade Commission Act (“FTCA”)
and the Telemarketing Sales Rule.
To remedy the violations, the district court in 2012
issued a permanent injunction that, inter alia, prohibited
Hewitt from engaging in the unlawful practices; and entered
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FTC V. HEWITT 3
a judgment in favor of the Federal Trade Commission for
equitable monetary relief. Hewitt never appealed the
judgment. In 2021, the Supreme Court issued AMG Capital
Management, LLC v. Federal Trade Commission, 141 Sup.
Ct. 1341 (2021), which held that Section 13(b) of the FTCA
did not authorize such equitable monetary relief. Hewitt
filed his Rule 60(b) motion to vacate the equitable monetary
judgment awarded against him—relying on the decision in
AMG.
First, the panel addressed Hewitt’s argument that the
district court erred in holding that the equitable monetary
portion of the original judgment was not “void” under Rule
60(b)(4). Under the first category for Rule 60(b)(4) relief
outlined in United Student Aid Funds, Inc. v. Espinosa, 559
U.S. 260, 271 (2010), the panel held that Hewitt failed to
establish a certain type of jurisdictional error. Hewitt failed
to show that the equitable monetary judgment here—which
was consistent with then-prevailing precedent—rested on a
total want of jurisdiction, or lacked even a colorable
basis. Turning to the second Espinosa category, the panel
held that Hewitt also failed to establish that a “violation of
due process deprive[d] [him] of notice or opportunity to be
heard” before the original judgment was
imposed. Espinosa, 559 U.S. at 271. Hewitt did not
meaningfully press any material contentions that he was
deprived of notice or an opportunity to be heard during the
proceedings culminating in the underlying judgment.
Second, Hewitt argued that the district court abused its
discretion in concluding that the equitable monetary portion
of the judgment lacked prospective application under Rule
60(b)(5). The standard used in determining whether a
judgment has prospective application is whether it is
executory, or involves the supervision of changing conduct
4 FTC V. HEWITT
or conditions. The panel held that the equitable monetary
judgment—which required nothing from Hewitt other than
paying the money awarded—was not executory because it
did not compel Hewitt to perform or restrain him performing
a future act within the meaning of Rule 60(b)(5). The panel
held further that the equitable monetary judgment—which
involved no court supervision of Hewitt other than ordering
him to pay the money awarded—did not involve supervision
of changing conduct or conditions within the meaning of
Rule 60(b)(5).
Third, Hewitt argued that the district court abused its
discretion in denying his request for relief under the catch-
all provision of Rule 60(b)(6). Relief under Rule 60(b)(6) is
available only in extraordinary circumstances. The panel
held that the first relevant set of considerations—the nature
and relationship of the intervening change in the law—did
not establish that the district court abused its discretion in
denying relief. It was not extraordinary that the Supreme
Court arrived at a different interpretation from then-
prevailing precedent in this Circuit. The panel held also that
the second relevant consideration—the diligence of the party
in seeking relief from the original judgment—did not
establish that the district court abused its discretion in
denying relief. Hewitt was not diligent in challenging the
original judgment a decade ago, and he fell decisively short
of the diligence standard in Gonzalez v. Crosby, 545 U.S.
524 (2005). The panel held that the third set of
considerations--which included “additional considerations”
relevant to balancing the competing policies of the finality
of judgments and the command that justice be done—did not
establish that the district court abused its discretion in
denying relief. The panel concluded that given the
“additional considerations” on both sides, it was difficult to
FTC V. HEWITT 5
conclude that the district court abused its discretion in
declining to relieve Hewitt from a decade-old judgment
requiring him to provide restitution or disgorgement for its
ill-gotten gains. The panel declined to disturb the district
court’s exercise of its wide discretion in concluding that no
extraordinary circumstances warranted relief under Rule
60(b)(6).
COUNSEL
Kevin J. Leichter (argued) and Andrew E. Hewitt, The
Leichter Firm APC, Los Angeles, for Defendant-Appellant.
Matthew M. Hoffman (argued) and Theodore (Jack)
Metzler, Attorneys; Joel Marcus, Deputy General Counsel;
Anisha S. Dasgupta, General Counsel; Federal Trade
Commission; Washington, D.C.; John D. Jacobs, Attorney;
Federal Trade Commission; Los Angeles, California; Evan
P. Rose, Attorney; Federal Trade Commission; San
Francisco, California; for Plaintiff-Appellee.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a defendant who was ordered
to pay a half-billion dollars in equitable monetary relief to
the Federal Trade Commission may be entitled to a remittitur
in light of a Supreme Court decision nearly a decade later.
6 FTC V. HEWITT
I
A
During the mid-2000s, Gary Hewitt spearheaded a get-
rich-quick scam—which promised to make consumers rich,
but ultimately defrauded them of hundreds of millions of
dollars. See, e.g., E.R. 45-98 (detailing the scam). In
response, the Federal Trade Commission (“FTC”) brought
suit against Hewitt and other scam participants under
Sections 13(b) and 19 of the Federal Trade Commission Act
(“FTCA”), see 15 U.S.C. §§ 53(b), 57b, and under the
Telemarketing and Consumer Fraud and Abuse Prevention
Act, see 15 U.S.C. §§ 6101-6108—alleging that the scam
violated Section 5 of the FTCA, see 15 U.S.C. § 45(a), and
the FTC’s Telemarketing Sales Rule, see 16 C.F.R. pt. 310,
as amended by 68 Fed. Reg. 4580, 4669 (Jan. 29, 2003).
In 2012, the district court granted summary judgment to
the FTC, holding that Hewitt’s scam indeed violated Section
5 of the FTCA and the Telemarketing Sales Rule. E.R. 45-
98. To remedy the established violations, the district court
granted both injunctive and monetary relief—relying on
Section 13(b) of the FTCA. E.R. 14-44; see Fed. Trade
Comm’n v. Pantron I Corp., 33 F.3d 1088, 1102 (9th Cir.
1994) (blessing such relief—at the time). First, the district
court issued a permanent injunction that, inter alia,
prohibited Hewitt from engaging in the unlawful practices.
E.R. 22-36. Second, the district court entered judgment in
favor of the FTC for “equitable monetary relief.” E.R. 36
(“Monetary Judgment and Consumer Restitution”).
In particular, the 2012 district court decision (1) held
Hewitt and his co-defendants liable for nearly a half-billion
dollars in “equitable monetary relief” equal to consumer
injury or unjust enrichment, and (2) ordered them to pay
FTC V. HEWITT 7
such money into a “fund” administered by the FTC or its
agent—which was to be used for (a) “direct restitution to
consumers” (first priority), (b) “other equitable relief”
(secondary priority—permissible if such restitution were
“impracticable” or “funds remain[ed]”), or
(c) “disgorgement” to the Treasury (final priority—triggered
in the event any funds were not used for such restitution or
equitable relief). E.R. 36-38.
Hewitt never challenged the statutory validity of the
equitable monetary relief, nor appealed from the 2012
judgment—which has remained on the books all this time.
B
But the law changed nearly a decade after the judgment
against Hewitt—and it is now undisputed that Section 13(b)
does not authorize such equitable monetary relief. On April
22, 2021, the Supreme Court issued its landmark decision in
AMG Capital Management, LLC v. Federal Trade
Commission, 141 S. Ct. 1341 (2021)—holding that Section
13(b) of the FTCA does not “authorize[] the Commission to
seek, and a court to award, equitable monetary relief such as
restitution or disgorgement,” id. at 1344 (vindicating Fed.
Trade Comm’n v. AMG Cap. Mgmt., LLC, 910 F.3d 417,
429-37 (9th Cir. 2018) (O’Scannlain, J., specially
concurring)). Although Hewitt had never before challenged
the statutory validity of the equitable monetary relief and had
never appealed the original judgment, he promptly moved
under Federal Rule of Civil Procedure 60(b) on May 24,
2021, to vacate the (largely unpaid) equitable monetary
judgment awarded against him—relying on the Supreme
Court’s decision in AMG.
The district court denied Hewitt’s motion for relief from
the 2012 equitable monetary judgment. First, it held that the
8 FTC V. HEWITT
equitable monetary judgment was not “void” under Rule
60(b)(4) because (a) there was an “arguable basis” for the
court’s jurisdiction to issue the judgment, and (b) the
judgment reflected a “remedial” rather than a
“jurisdictional” error. E.R. 4-6 (cleaned up). Second, it held
that the challenged monetary judgment was not
“prospective” under Rule 60(b)(5) because the “equitable
monetary relief” offered “a present remedy for a past
wrong,” rather than “prospective injunctive relief.” E.R. 6-
7 (cleaned up). Third, it held that even though a “change in
the controlling law” (like AMG) can be a reason to grant Rule
60(b)(6) relief, there were no “extraordinary circumstances”
that warranted vacating the equitable monetary judgment
here. E.R. 7-11. 1
Hewitt timely appealed to this Court—raising essentially
the same challenges that he presented to the district court.
II
The issue before us is whether the district court erred by
denying Hewitt relief from the equitable monetary
judgment—and we emphasize at the outset that our task here
1
Other district courts have been presented with motions for relief under
Rule 60(b) based on the Supreme Court’s decision in AMG—but no
district court decision brought to our attention by the parties has ever
granted such relief. See, e.g., Fed. Trade Comm’n v. AH Media Grp.,
LLC, 339 F.R.D. 612 (N.D. Cal. 2021); Fed. Trade Comm’n v. Apex Cap.
Grp., No. 18-cv-9573, 2021 U.S. Dist. LEXIS 255314 (C.D. Cal. Sept.
3, 2021); Fed. Trade Comm’n v. Ivy Cap., Inc., 340 F.R.D. 602 (D. Nev.
2022); see also Fed. Trade Comm’n v. Elite IT Partners, Inc., No. 2:19-
cv-00125, 2023 U.S. Dist. LEXIS 8949 (D. Utah Jan. 17, 2023); Fed.
Trade Comm’n v. Nat’l Urological Grp., Inc., No. 1:04-cv-3294, 2021
U.S. Dist. LEXIS 235970 (N.D. Ga. Sept. 30, 2021); Fed. Trade
Comm’n v. Ross, No. 08-cv-3233, 2022 U.S. Dist. LEXIS 166360 (D.
Md. Sept. 14, 2022).
FTC V. HEWITT 9
is a narrow one. We do not hold that Rule 60(b) relief from
a pre-AMG judgment awarding an improper equitable
monetary remedy is never appropriate. Instead, we merely
address Hewitt’s particular appeal—and so we only decide
whether the district court erred in denying relief from the
2012 equitable monetary judgment based on the particular
legal and factual attacks that Hewitt has raised. See, e.g.,
Gonzalez v. Crosby, 545 U.S. 524, 537-38 (2005)
(explaining, inter alia, that party-specific features can make
the difference for Rule 60(b) relief). To perform our narrow
task, we address Hewitt’s three major arguments for relief in
turn.
A
Hewitt’s first merits argument is that the district court
erred in holding that the equitable monetary portion of the
original judgment is not “void” under Rule 60(b)(4). Rule
60(b)(4) authorizes relief from a judgment where “the
judgment is void.” Fed. R. Civ. P. 60(b)(4). It applies “only
in the rare instance where a judgment is premised either
[1] on a certain type of jurisdictional error or [2] on a
violation of due process that deprives a party of notice or the
opportunity to be heard.” United Student Aid Funds, Inc. v.
Espinosa, 559 U.S. 260, 271 (2010); see id. at 270(explaining that a judgment is not “void” simply because it
is “erroneous” (cleaned up)). Ultimately, the alleged error
in the original judgment falls into neither category.
1
Starting with Espinosa’s first category, Hewitt has failed
to establish the necessary “type of jurisdictional error.” Id.
at 271. Because the scope of what constitutes a “void”
judgment is “narrowly circumscribed,” a judgment is void
“only where the assertion of jurisdiction is truly
10 FTC V. HEWITT
unsupported”—and a “void judgment must lack even a
colorable basis.” Hoffmann v. Pulido, 928 F.3d 1147, 1151
(9th Cir. 2019); see NewGen, LLC v. Safe Cig, LLC, 840
F.3d 606, 612 (9th Cir. 2016) (“A judgment is only void
where there is a total want of jurisdiction as opposed to an
error in the exercise of jurisdiction.” (cleaned up)). Here,
Hewitt does not challenge the court’s subject-matter or
personal jurisdiction over the case; instead, he challenges the
“court’s authority to impose certain remedies.” United
States v. Philip Morris USA Inc., 840 F.3d 844, 850 (D.C.
Cir. 2016). Even if such a “remedial error” were
“jurisdictional,” id. (cleaned up; rejecting an argument like
Hewitt’s), Hewitt has failed to show that the equitable
monetary judgment here—which was consistent with then-
prevailing precedent in our circuit (and most other circuits),
see Pantron I, 33 F.3d at 1102 (9th Cir. 1994); see also, e.g.,
Fed. Trade Comm’n v. Bronson Partners, LLC, 654 F.3d
359, 365 (2d Cir. 2011)—rested on a “total want of
jurisdiction,” NewGen, 840 F.3d at 612 (cleaned up), or
lacked “even a colorable basis,” Hoffman, 928 F.3d at 1151
(holding that a “routine[]” practice consistent with existing
precedent provided an “arguable basis” for an “assertion of
jurisdiction” (cleaned up)). Accordingly, Espinosa’s first
category provides Hewitt no relief here.
2
Turning to Espinosa’s second category, Hewitt has also
failed to establish a “violation of due process that deprive[d]
[him] of notice or the opportunity to be heard” before the
original judgment was imposed. Espinosa, 559 U.S. at 271.
Indeed, Hewitt does not meaningfully press any material
contentions that he was deprived of “notice” or an
“opportunity to be heard” during the proceedings
culminating in the underlying judgment—and we will not
FTC V. HEWITT 11
develop any arguments for him, see, e.g., Greenwood v. Fed.
Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994). While
Hewitt—appearing to channel both Rule 60(b) and the
federal Constitution itself—argues that it violates his
procedural and substantive due process rights for the original
judgment to remain in effect (based on the fact that, after
AMG, the judgment is predicated on a legal error, but see,
e.g., Espinosa, 559 U.S. at 270 (explaining that a “judgment
is not void … simply because it is or may have been
erroneous” (cleaned up))), he neither establishes nor engages
the requisite due-process elements set out by Espinosa’s
second category. Accordingly, he fails to provide any reason
for us to conclude that the judgment is “void” under Rule
60(b)(4).
B
Hewitt’s second merits argument is that the district court
abused its discretion in concluding that the equitable
monetary portion of the judgment lacks “prospective[]”
application under Rule 60(b)(5). Rule 60(b)(5) authorizes
relief from a judgment where, inter alia, “applying it
prospectively is no longer equitable.” Fed. R. Civ. P.
60(b)(5). Because “[v]irtually every court order causes at
least some reverberations into the future,” the fact that “a
court’s action has continuing consequences … does not
necessarily mean that it has ‘prospective application’ for the
purposes of Rule 60(b)(5).” Maraziti v. Thorpe, 52 F.3d
252, 254 (9th Cir. 1995) (cleaned up). Instead, the “standard
used in determining whether a judgment has prospective
application is whether it is [1] executory or [2] involves the
supervision of changing conduct or conditions.” Id. (cleaned
up; relying on Pennsylvania v. Wheeling & Belmont Bridge
Co., 59 U.S. 421, 431 (1856), and United States v. Swift &
Co., 286 U.S. 106, 114 (1932)); see California by & through
12 FTC V. HEWITT
Becerra v. U.S. Env’t Prot. Agency, 978 F.3d 708, 716-18
(9th Cir. 2020). Ultimately, the underlying monetary
judgment challenged here—which simply ordered Hewitt to
pay a fixed sum of money equal to consumer injury or unjust
enrichment—falls into neither category.
1
First, the equitable monetary judgment—which requires
nothing from Hewitt other than paying the money
awarded—is not “executory” because it does not “compel[]
[Hewitt] to perform or restrain[] [him] from performing a
future act” within the meaning of Rule 60(b)(5). Becerra,
978 F.3d at 717 (citing Twelve John Does v. District of
Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988)); see, e.g.,
Stokors S.A. v. Morrison, 147 F.3d 759, 762 (8th Cir. 1998)
(explaining that an order requiring monetary payments is not
executory). While the (unchallenged) injunctive portion of
the judgment (prohibiting Hewitt from, inter alia, engaging
in unlawful telemarketing practices) is “executory,” see E.R.
22-36 (injunctive relief; unaffected by AMG), the equitable
monetary portion of the judgment at issue here is not
“executory,” and instead offers a “present remedy for a past
wrong,” Becerra, 978 F.3d at 717 (cleaned up;
distinguishing “damages” from “injunctions”); see Maraziti,
52 F.3d at 254 (noting that merely “feel[ing] the effects of a
money judgment” does not make it “prospective” (cleaned
up)).
2
Second, the equitable monetary judgment challenged
here—which involves no court supervision of Hewitt other
than ordering him to pay the money awarded—does not
involve “supervision of changing conduct or conditions”
within the meaning of Rule 60(b)(5). Maraziti, 52 F.3d at
FTC V. HEWITT 13
254 (cleaned up). Whatever the judicial supervision
involved in ensuring that Hewitt complies with the
injunctive portion of the judgment (e.g., refraining from
forbidden telemarketing), see E.R. 22-36, the equitable
monetary portion of the judgment at stake here merely
involves the court in “enforcing an ordered transfer,” rather
than the “supervision of changing conduct or conditions,”
DeWeerth v. Baldinger, 38 F.3d 1266, 1275-76 (2d Cir.
1994) (cleaned up; explaining that “judgments involving
injunctions have prospective application, while money
judgments do not”); see Stokors, 147 F.3d at 762 (same;
collecting cases); see also, e.g., 12 Moore’s Federal Practice
- Civil § 60.47 (2022) (same); 11 Wright & Miller, Federal
Practice & Procedure § 2863 (3d ed. 2020) (same).
Ultimately, the challenged monetary judgment is “an order
to pay money,” AMG, 910 F.3d at 430 (O’Scannlain, J.,
specially concurring)—and “[such] a money judgment does
not have prospective application” for purposes of Rule
60(b)(5), Stokors, 147 F.3d at 762.
C
Hewitt’s third merits argument is that the district court
abused its discretion in denying his request for relief under
Rule 60(b)(6). This catch-all provision permits relief from a
final judgment where there is “any other reason that justifies
relief.” Fed. R. Civ. P. 60(b)(6). Relief under Rule
60(b)(6)—which is ordinarily addressed to the “wide
discretion” of the district court—is “available only in
‘extraordinary circumstances.’” Buck v. Davis, 580 U.S.
100, 123 (2017) (quoting Gonzalez, 545 U.S. at 535). Where
a party seeks relief under Rule 60(b)(6) primarily based on
an intervening change in the law, such an intervening change
may be adequate. But “it is hardly extraordinary” if a
decision rests on a “then-prevailing interpretation” of the law
14 FTC V. HEWITT
and the Supreme Court later “arrive[s] at a different
interpretation”—and such a change “is all the less
extraordinary” where a party has displayed a “lack of
diligence” in the original proceedings. Gonzalez, 545 U.S.
at 536-37; see Henson v. Fid. Nat’l Fin., Inc., 943 F.3d 434,
445-46 (9th Cir. 2019) (explaining that relief based on a
“change in the law” depends on a “case-by-case inquiry” that
captures “all of the relevant circumstances”); Phelps v.
Alameida, 569 F.3d 1120, 1135-40 (9th Cir. 2009) (same).
Ultimately, Hewitt—who never challenged the equitable
monetary judgment when it was originally issued consistent
with then-prevailing circuit precedent—has failed to
establish that the district court abused its discretion in
finding no “extraordinary circumstances” warranting relief
based on the three most relevant sets of considerations raised
by the parties.
1
The first relevant set of considerations—the nature and
relationship of the intervening change in the law—does not
establish that the district court abused its discretion in
denying relief. It is “hardly extraordinary” that the Supreme
Court arrives at a “different interpretation” from “then-
prevailing” precedent in our Circuit. Gonzalez, 545 U.S. at
536-37 (declining to find “extraordinary circumstances”
where, inter alia, a district court’s “interpretation was by all
appearances correct under the … Circuit’s then-prevailing
interpretation”). Still, our precedents have recognized that
such a “change in the law” may be a relevant “factor[]”—
and we have considered both (a) the “relationship between
the original judgment and the change in the law” (e.g.,
whether there is a “close connection” between the cases),
and (b) the “nature of the intervening change in the law”
(e.g., whether the original judgment was correct under then-
FTC V. HEWITT 15
prevailing circuit precedent). Henson, 943 F.3d at 446, 452
(cleaned up); see also Phelps, 569 F.3d at 1135-36.
Here—where some features of the legal change worked
by AMG support relief, but others plainly do not—it was not
an abuse of discretion to conclude that the change in law did
not warrant relief. On the one hand, some features of the
legal change bolster the request for relief—and, in particular,
the “close relationship between the underlying decision and
the now controlling precedent” favors relief because the
foundation for the underlying decision was “directly
overruled” by the Supreme Court’s decision in AMG
(holding that such equitable monetary remedies are not
available under Section 13(b)). Phelps, 569 F.3d at 1139-
40; cf. AMG, 910 F.3d at 429 (O’Scannlain, J., specially
concurring) (noting the legal and institutional significance of
our old interpretation). But on the other hand, other features
of the legal change disfavor relief. Perhaps most
importantly, the equitable monetary judgment was
consistent with Ninth Circuit precedent at the time, as well
as the prevailing view in most other circuits, see, e.g.,
Pantron I, 33 F.3d at 1102 (9th Cir. 1994) (authorizing such
judgments); see also, e.g., Bronson Partners, 654 F.3d at
365 (2d Cir. 2011) (same)—it was, in other words, “correct
under the [Ninth] Circuit’s then-prevailing interpretation” of
the law, Gonzalez, 545 U.S. at 536; see, e.g., Phelps, 569
F.3d at 1136 (inquiring whether a “change in the law …
upset or overturn[ed] a settled legal principle” entrenched in
published circuit precedent). Given such competing
considerations—and, in particular, the fact that the
challenged judgment was “correct” under our “then-
prevailing” precedent, Gonzalez, 545 U.S. at 536—Hewitt
has failed to establish that the district court abused its
16 FTC V. HEWITT
discretion in denying relief based on this first set of
considerations.
2
The second relevant consideration—the diligence of the
party in seeking relief from the original judgment—does not
establish that the district court abused its discretion in
denying relief. While it is already “hardly extraordinary”
that the Supreme Court arrives at a “different interpretation”
after a final judgment is “no longer pending,” such a “change
in the law” is “all the less extraordinary” where a party has
displayed a “lack of diligence”—in particular, by (a) failing
to “raise[] [the] issue” before the district court, (b) declining
to lodge an appeal or “file[] a petition for rehearing,” or
(c) neglecting to seek “certiorari review.” Id. at 536-37; see
also, e.g., Ackermann v. United States, 340 U.S. 193, 197-
202 (1950) (lack of diligence—failing to appeal); Phelps,
569 F.3d at 1136-37 (diligence—repeated attempts at
review).
Hewitt was not diligent in challenging the original
judgment a decade ago—and he fell decisively short of
Gonzalez’s diligence standard in at least two ways. First,
Hewitt failed to raise the issue before the district court when
the original judgment was imposed—that is, he never made
the argument (later accepted by AMG) that Section 13(b)
does not authorize such monetary judgments. Second,
Hewitt (unlike one of his co-defendants, see Fed. Trade
Comm’n v. John Beck Amazing Profits, LLC, 644 F. App’x
709, 710 (9th Cir. 2016)) failed to appeal the original
judgment, and never took any further steps for direct review
of the equitable monetary remedy. See, e.g., Ackermann,
340 U.S. at 197-202 (failure to appeal without adequate
justification). Accordingly, the second relevant
FTC V. HEWITT 17
consideration—Hewitt’s “lack of diligence in pursuing
review,” Gonzalez, 545 U.S. at 537—does not establish that
the district court abused its discretion in denying relief.
3
The third set of considerations—which includes
“additional considerations” relevant to balancing “the
competing policies of the finality of judgments and the
incessant command of the court’s conscience that justice be
done in light of all the facts,” Henson, 943 F.3d at 444-45
(cleaned up; declining to impose a “rigid or exhaustive
checklist”)—does not establish that the district court abused
its discretion in denying relief. On the one hand, Hewitt
raises some powerful considerations favoring relief from the
equitable monetary judgment, including, inter alia, that:
(a) the monetary judgment was never authorized by
Congress, and (b) the judgment imposes crippling financial
liability on Hewitt. On the other hand, the FTC advances
similarly weighty reasons cutting against relief, including,
inter alia, that: (a) the fact that our understanding of
Congress’s will has changed is not itself extraordinary, and
(b) the remaining equities do not favor relief given, inter
alia, (i) the severity and culpability of Hewitt’s unlawful
conduct, (ii) the nature and magnitude of the injury that
Hewitt caused to consumers (who remain largely
uncompensated), and (iii) the potential for materially similar
relief under alternative remedial pathways.
Given the weighty (and often incommensurable)
“additional considerations” on both sides, which the district
court carefully considered and analyzed, it is difficult to
conclude that the district court abused its discretion in
declining to relieve Hewitt from a decade-old judgment
requiring him to provide restitution or disgorgement for his
18 FTC V. HEWITT
ill-gotten gains. And that is particularly true when these
“additional considerations” are weighed against the fact that
the original judgment was consistent with then-prevailing
precedent and was never materially challenged by Hewitt.
See, e.g., Gonzalez, 545 U.S. at 536-37 (explaining (as noted
above) that it is “hardly extraordinary” when the Supreme
Court rejects “then-prevailing” circuit precedent, and it is
“all the less extraordinary” when a petitioner has displayed
a “lack of diligence”). Accordingly, we decline to disturb
the district court’s exercise of its “wide discretion” in
concluding that no “extraordinary circumstances” warranted
relief under Rule 60(b)(6). Buck, 580 U.S. at 123.
III
For the foregoing reasons, the judgment of the district
court is AFFIRMED.