UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FEDERAL ELECTION COMMISSION, 

 Plaintiff, 

 v. 

JODY L. NOVACEK, et al., 

 Defendants. 

 

 Civ. No. 09-CV-00444 

 PLAINTIFF FEC’S 

 MOTION FOR 

 SUMMARY JUDGMENT 

PLAINTIFF FEDERAL ELECTION COMMISSION’S 

MOTION FOR SUMMARY JUDGMENT 

The Federal Election Commission respectfully moves this Court for summary judgment 

pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56.3. A brief in support of this 

motion satisfying the requirements of Local Rule 56.3(b), an appendix, and a proposed order is 

submitted herewith. 

Respectfully submitted, 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 s/ Greg J. Mueller

Greg J. Mueller 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

Washington, DC 20463 

November 30, 2009 (202) 694-1650

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 1 of 29
UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FEDERAL ELECTION COMMISSION, 

 Plaintiff, 

 v. 

JODY L. NOVACEK, et al., 

 Defendants. 

 

 Civ. No. 09-CV-00444 

 

 PLAINTIFF FEC’S 

 MEMORANDUM IN SUPPORT OF 

 ITS MOTION FOR 

 SUMMARY JUDGMENT 

PLAINTIFF FEDERAL ELECTION COMMISSION’S MEMORANDUM IN SUPPORT 

OF ITS MOTION FOR SUMMARY JUDGMENT 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 Greg J. Mueller 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

Washington, DC 20463 

November 30, 2009 (202) 694-1650 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 2 of 29
TABLE OF CONTENTS 

I. SUMMARY ........................................................................................................ 1 

II. BACKGROUND ................................................................................................ 1 

A. The Commission’s Statutory Enforcement Procedures .......................... 1 

B. Procedural History .................................................................................. 2 

III. STATEMENT OF THE CASE ........................................................................... 3 

A. Novacek, RVC, and BPO Fundraising ................................................... 3 

B. Novacek Originated the First Set of Solicitations by RVC through 

Apex ........................................................................................................ 4 

C. Novacek Arranged a Second Set of Solicitations by RVC through 

Advantage ............................................................................................... 9 

IV. ARGUMENT .................................................................................................... 10 

A. Novacek Fraudulently Misrepresented Herself, and the Entities she 

Created and Operated, as Acting on Behalf of the Republican Party ... 11 

B. Novacek and the RVC Violated the Act by Failing to Include the 

Required Disclaimer ............................................................................. 14 

C. The Commission is Entitled to Summary Judgment Regarding All 

Claims Brought Against the RVC and BPO Entities Because they 

Have Not Appeared to Defend this Action Through Counsel .............. 16 

D. The Court Should Fashion Remedies that Will Effectively Deter 

These Defendants and Other Persons from Engaging in Similar 

Unlawful Activities and Undermining Important Public Interests ....... 16 

1. The Court Should Declare that Novacek, RVC and BPO 

Violated the Act ........................................................................ 16 

2. The Court Should Assess a Civil Penalty Sufficient to Deter 

Such Violations and Vindicate the Compelling Interests 

Served by the Provisions Violated ............................................ 17 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 3 of 29
3. The Court Should Grant Injunctive Relief ................................ 20 

V. CONCLUSION ................................................................................................. 21 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 4 of 29
TABLE OF AUTHORITIES 

CASES 

AFL-CIO v. FEC, 628 F.2d 97, 100 (D.C. Cir. 1980) .................................................. 17 

Aiken v. Rimkus Consulting Group Inc., 333 Fed. Appx. 806 

(5th Cir. 2009) ......................................................................................................... 12 

Allstate Ins. Co. v. Receivable Finance Co., 501 F.3d 398 (5th Cir. 2007) .................. 17 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................. 10 

CFTC v. American Metals Exch. Corp., 991 F.2d 71 (3d Cir. 1993) ........................... 17

Donovan v. Road Rangers Country Junction, Inc., 736 F.2d 1004 

(5th Cir. 1984) ......................................................................................................... 16

FEC v. Furgatch, 869 F.2d 1256 (9th Cir. 1989) ......................................................... 17

FEC v. John A. Dramesi for Cong. Comm., 640 F. Supp. 985 (D.N.J. 1986) .............. 12

FEC v. Survival Education Fund, Inc., 65 F.3d 285 (2d Cir. 1995) ....................... 14, 15

K.M.A., Inc. v. General Motors Acceptance Corp., 652 F.2d 398 (5th Cir.1982 ......... 16

Salge v. Edna Independent School Dist., 411 F.3d 178 (5th Cir. 2005) ....................... 10

Sands, Taylor & Wood v. The Quaker Oats Co., 34 F.3d 1340 (7th Cir. 1994) ........... 18

SEC v. Huffman, 996 F.2d 800 (5th Cir.1993).............................................................. 17 

SEC v. Bonastia, 614 F.2d 908 (3d Cir. 1980) ............................................................. 20

Silverman v. United States, 213 F.2d 405 (5th Cir. 1954) ............................................ 12 

Southwest Express Co., Inc. v. Interstate Commerce Comm’n, 

670 F.2d 53 (5th Cir. 1982) .................................................................................... 16 

Stockman v. FEC, 138 F.3d 144 (5th Cir. 1998) ........................................................... 17 

United States v. Bordelon, 871 F.2d 491 (5th Cir. 1989) ............................................. 12 

United States v. Hopkins, 916 F.2d 207 (5th Cir. 1990) ............................................... 12 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 5 of 29
United States v. ITT Continental Baking Corp., 420 U.S. 223 (1975) ......................... 17 

United States v. Reader’s Digest Ass’n, 662 F.2d 955 (3d Cir. 1981).................... 18, 20 

United States v. St. Michael’s Credit Union, 880 F.2d 579 (1st Cir. 1989) ................. 18

United States v. Thomas, 377 F.3d 232, 242 (2d Cir. 2004) ......................................... 12

. 

STATUTES 

Federal Election Campaign Act, as amended, 2 U.S.C. §§ 431-55 ............................... 1 

2 U.S.C. § 431(22) ........................................................................................................ 14 

2 U.S.C. §431(24) ......................................................................................................... 14 

2 U.S.C. § 437c(b)(1) ...................................................................................................... 1 

2 U.S.C. § 437d ............................................................................................................. 16 

2 U.S.C. § 437d(a) .......................................................................................................... 1

2 U.S.C. § 437g ............................................................................................................... 1 

2 U.S.C. § 437g(a)(1) ...................................................................................................... 1 

2 U.S.C. § 437g(a)(2) ...................................................................................................... 2 

2 U.S.C. § 437g(a)(4)(A)(i) ............................................................................................ 2 

2 U.S.C. § 437g(a)(5)(B) .............................................................................................. 16 

2 U.S.C. § 437g(a)(6) .......................................................................................... 2, 17 ,20 

2 U.S.C. § 437g(a)(6)(B) .................................................................................. 16, 19, 20 

2 U.S.C. § 437g(a)(6)(C) ........................................................................................ 16, 19 

2 U.S.C. § 437g(d) ....................................................................................................... 16 

2 U.S.C. § 441d ................................................................................................. 17, 19, 20 

2 U.S.C. § 441d(a) ................................................................................ 11, 14, 15, 17 ,21 

2 U.S.C. § 441d(a)(3) .............................................................................................. 14, 21 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 6 of 29
2 U.S.C. § 441d(c) ................................................................................ 11, 14, 15, 17, 21 

2 U.S.C. § 441h ........................................................................................... 14, 17, 18, 19 

2 U.S.C. § 441h(b) ............................................................................................ 11, 12, 16 

2 U.S.C. § 441h(b)(1) ............................................................................................. 11, 21 

2 U.S.C. § 441h(b)(2) ................................................................................. 11, 17, 19, 21 

11 C.F.R. § 100.26 ........................................................................................................ 14 

11 C.F.R. § 100.28 ........................................................................................................ 14 

11 C.F.R. § 110.11(a).................................................................................................... 14 

11 C.F.R. § 110.11(b)(3) ............................................................................................... 14 

11 C.F.R. § 110.11(c)(1) ............................................................................................... 15 

11 C.F.R. § 110.11(c)(2)(i)-(ii) ..................................................................................... 15 

11 C.F.R. § 110.16 ........................................................................................................ 12 

11 C.F.R. § 111.24 .................................................................................................. 19, 20 

MISCELLANEOUS 

Fed. R. Civ. P. 56 ............................................................................................................ 1 

Fed. R. Civ. P. 56(c) ..................................................................................................... 10 

122 Cong. Rec. H3778 (daily ed. May 3, 1976) ........................................................... 12 

120 Cong. Rec. H7825 (daily ed. August 7, 1974) ....................................................... 18 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 7 of 29
1

I. SUMMARY 

 Plaintiff Federal Election Commission (“Commission” or “FEC”) submits this 

Memorandum in support of its Motion for Summary Judgment as to all causes of action in its 

Complaint. Fed. R. Civ. P. 56. Defendants made fundraising solicitations by phone and in 

mailers that fraudulently misrepresented the source of the solicitation as the Republican Party 

and/or Republican National Committee (“RNC”), in knowing and willful violation of the Federal 

Election Campaign Act, as amended, 2 U.S.C. §§ 431-55 (“Act”). Jody L. Novacek created and 

operated the Republican Victory Committee (“RVC”), as well as BPO, Inc., and BPO Advantage 

LP (collectively here “BPO”). Through these entities Novacek made misrepresentations to 

vendors and the general public stating or implying that the RVC was raising money for the 

Republican Party and the RNC. RVC raised more than $75,000 as a result of these solicitations. 

In addition, Novacek and RVC violated the Act by failing to include on their communications 

the required disclaimer information in the manner specified by statute. In connection with these 

separate violations of the Act, the Commission seeks a declaratory judgment, injunctive relief, 

and appropriate civil penalties. 

II. BACKGROUND 

A. The Commission’s Statutory Enforcement Procedures 

The Commission is the independent agency of the United States government with exclusive 

jurisdiction over the administration, interpretation, and civil enforcement of the Act. See generally

2 U.S.C. §§ 437c(b)(1), 437d(a), and 437g. Under the Act, any person may file an administrative 

complaint with the Commission, alleging a violation of the Act. 2 U.S.C. § 437g(a)(1). After a 

person alleged to have committed a violation is notified of the complaint and has an opportunity to 

respond, at least four of the Commission’s six members may find “reason to believe” that a 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 8 of 29
2

violation of the Act has occurred, authorizing the Commission to undertake an administrative 

investigation. 2 U.S.C. § 437g(a)(2). The Commission may also make such a determination on the 

basis of information ascertained in the normal course of carrying out its supervisory responsibilities. 

Id.

After an investigation, if at least four Commissioners vote to find “probable cause to 

believe” that a violation has occurred, the Commission must attempt to correct or prevent the 

violation by engaging in conciliation with the respondent for at least 30 days. 2 U.S.C. 

§ 437g(a)(4)(A)(i). If conciliation fails, the Commission may bring a de novo suit against the 

respondent. 2 U.S.C. § 437g(a)(6). 

B. Procedural History 

 In June 2004, the RNC filed a sworn administrative complaint with the Commission that 

alleged certain solicitations to the public made by the RVC violated the Act, and Novacek 

submitted a response. Complaint ¶¶ 9-10 (filed March 9, 2009); Response to Complaint ¶ 5 

(filed July 29, 2009). On January 31, 2005, the Commission determined that there was reason to 

believe that Novacek and the related entities had violated the Act. Complaint ¶ 11; Response 

¶ 5. On May 30, 2006 the Commission notified the defendants of these findings, provided a 

Factual and Legal Analysis that formed their basis, and initiated an investigation. Complaint 

¶ 12; Response ¶ 5. During the investigation the Commission took Novacek’s deposition, 

received testimony in the form of affidavits from many witnesses, and received through 

subpoenas the relevant bank records. On June 19, 2007, after overseeing the investigation, the 

Commission’s General Counsel notified defendants that she was prepared to recommend that the 

Commission find probable cause to believe that defendants violated the Act and provided 

defendants with a brief that stated the position of the General Counsel. Complaint ¶ 13; 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 9 of 29
3

Reponses ¶ 5. On July 6, 2007, defendants filed a written response to the General Counsel’s 

brief. Complaint ¶ 14; Response ¶ 5. In October 2008, the Commission found probable cause to 

believe that the defendants violated the Act, notified the defendants, provided a proposed 

conciliation agreement, and thereafter sought to enter into a conciliation agreement with 

defendants. Complaint ¶ 15; Response ¶ 5. The Commission was unable through informal 

methods to secure an acceptable conciliation agreement with the defendants and then authorized 

the initiation of this civil action. Complaint ¶ 17; Response ¶ 5.

III. STATEMENT OF THE CASE 

A. Novacek, RVC, and BPO Fundraising 

Prior to the events that gave rise to this case, defendant Jody L. Novacek had extensive 

experience working in telemarketing fundraising for political clients, including Republican 

candidates and political committees. Appx. 24-25 (Novacek Dep. 24-25); Appx. 550-51 

(Maddux Aff. ¶¶ 3-7). Novacek had made calls for political candidates and other political 

entities since 1982, and had worked as a contractor for the RNC, the National Republican 

Senatorial Committee, and some state political parties. Appx. 21-25, 43-44, 55, 57 (Novacek 

Dep. 21-25, 43-44, 55, 57); Appx. 551 (Maddux Aff. ¶¶ 4-5). She had handled RNC scripts and 

direct mailers, including solicitations, and had an understanding of how the RNC worked its 

phone banks and other solicitations. Appx. 45-47 (Dep. 45-47). 

Novacek incorporated the RVC in Texas in early 2004. Appx. 70-71 (Novacek Dep. 70-

71). In June 2004, Novacek filed a Statement of Organization for the RVC with the 

Commission. Appx. 323-30 (Novacek Dep. Exh’s. 2, 3, & 4). Novacek conducted all of the 

RVC’s activities. Other than some help from neighbors who periodically brought in her mail, no 

one assisted her or was an employee, member, or volunteer for the RVC. Appx. 63-64 (Novacek 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 10 of 29
4

Dep. 63-64). Novacek described herself as the “founder” of the RVC and stated that the entity 

was her “brainchild.” Appx. 62 (Novacek Dep. 62). She conducted all RVC activities from her 

residence. Appx. 84 (Novacek Dep. 84). 

Novacek also created and owned BPO, Inc., and BPO Advantage LP, entities for which 

she acted as president and conducted all operations. Appx. 17-18 (Novacek Dep. 17-18). The 

two BPO entities functioned as one entity and were only created as two distinct legal entities for 

Texas tax purposes. Appx. 17-18 (Novacek Dep. 17-18). Novacek used BPO to enter into 

business transactions and contractual obligations on her own behalf, as well as to enter into 

negotiations, contracts, and agreements on behalf of the RVC. Appx. 18, 41, 109-12, (Novacek 

Dep. 18, 41, 109-12). Indeed, she had no personal checking account. Appx. 268 (Novacek Dep. 

268). When Novacek crafted the telemarketing fundraising campaign to solicit contributions to 

the RVC, she made all financial and contractual arrangements through BPO. Appx. 11 (Novacek 

Dep. 112). 

B. Novacek Originated the First Set of Solicitations by RVC through Apex 

Acting through BPO, Novacek hired Apex CoVantage, L.L.C. (“Apex”) to make 

fundraising calls on behalf of the RVC, which took place primarily in the first half of 2004. 

After a recipient of these calls agreed to make a contribution, Apex or Novacek followed up the 

fundraising calls with mailings requesting the contributions the solicitee had agreed to make. 

Novacek provided Apex with a list of potential contributors and a call script, which Novacek 

created and edited, and Apex used its call center in India to conduct the calls. Appx. 551, 553 

(Maddux Decl. ¶¶ 7, 11-13); Appx. 118 (Novacek Dep. 118). 

In late 2003, Novacek contacted Apex’s Tom Maddux — a vendor with whom Novacek 

had previously worked when he had been employed at other companies — and proposed that 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 11 of 29
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Apex do political fundraising for the RVC. Appx. 550-52 (Maddux Aff. ¶¶ 3, 6-7). Apex had 

never done such work in the past and Maddux was interested in obtaining new business for 

Apex, so he agreed to work with Novacek. Appx. 551 (Maddux Aff. ¶ 7). Novacek provided 

Apex with a list of potential contributors and a call script, and Apex conducted the calls. Appx. 

113-18 (Dep. 113-18). Novacek created and edited the scripts. Appx. 118 (Dep. 118). If 

recipients agreed to send a contribution, they then received a letter created by Novacek and 

mailed by Novacek or Apex providing additional information and instructing the recipient where 

to send the contribution. Appx. 334 (Novacek Dep. Ex. 9, RVC Form Letter); Appx. 578-583 

(Person Aff. Attachment, RVC letters as received by solicitee). Initially the contributions were 

sent directly to a post office box held by Novacek, and later some were sent to a second post 

office box set up by Apex to hold the checks for Novacek. Appx. 554 (Maddux Aff. ¶ 14). 

Apex personnel believed that the calls were being made on behalf of the Republican 

Party and/or the RNC. Appx. 552 (Maddux Aff. ¶¶ 9-10). They believed the program was for 

the RNC in part because of the name of the Republican Victory Committee and the way in which 

Novacek had presented the program. For example, Novacek had told Maddux that she was 

working for and was on retainer with the RNC and that she was in charge of its outgoing 

telemarketing. Appx. 552 (Maddux Aff. ¶¶ 9-10).1

 Thus, when Novacek proposed that Apex 

make calls on behalf of the RVC, Maddux assumed that the calls were for the RNC. Novacek 

later confirmed Maddux’s assumption. Appx. 552 (Maddux Aff. ¶¶ 9-10). 

 

1

 At the time, Novacek was also working as a consultant for Advantage Direct 

Communications, Inc. (“Advantage”), a contractor for the RNC that was later hired by the RVC. 

She was assisting Advantage in setting up two call centers in Nebraska by helping with training 

and other management issues. Appx. 558-59 (Butzke Aff. ¶¶ 2-4). At that time, Advantage was 

conducting fundraising calls for the RNC. Id., ¶¶ 3-4. However, Novacek was not on retainer or 

otherwise employed by the RNC. Appx. 570 (Person Aff. ¶ 7; Appx. 475 (Administrative 

Complaint, p. 3). 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 12 of 29
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Other actions by Novacek led Maddux and the others at Apex to believe they were 

working for the Republican Party. For example, the Statement of Work attached to the contract 

between Apex and BPO, signed by Novacek, described the program as “Outbound 

Telemarketing Fundraising for the Republican Party” and discussed the revenue split that will go 

to the “GOP.” Appx. 592-94 (Attachment 1, Statement of Work #1); Appx. 596 (Apex-BPO 

GOP Revenue Distribution Projections). When negotiating the contract between BPO and Apex 

on behalf of the RVC, Maddux and the others at Apex asked Novacek why the entity was called 

the “Republican Victory Committee” and not the RNC. In response, Novacek stated that the 

RNC was an “umbrella organization” and that the umbrella covered the calls proposed by 

Novacek. Appx. 552 (Maddux Aff. ¶ 10). A memo drafted by Novacek to Adam Booth (an 

Apex employee who assisted with training Apex’s employees at the call center in India) 

described the program as a “GOP committee.” Appx. 372 (Dep. Ex. 13). 

For the RVC telephone solicitations, the callers were instructed to ask whether the 

recipient was a registered Republican. Appx. 339 (script); see also Appx. 628, 631(transcript of 

recorded calls). Once that was verified, they asked for support for “our state candidates and 

President Bush’s agenda” because “[i]t’s going to be tough to beat the Democrats this fall.” 

The caller explained, “Your financial help is critical so Republicans can win . . . .” Appx. 339-

40 (Dep. Ex. 7, RVC-Apex Script). The caller never stated that the RVC was not authorized by 

the Republican Party or a candidate. Appx. 339 (script); Appx. 619-33 (transcripts). 

If a recipient expressed confusion during the call, the caller was directed to use a series of 

“rebuttals” drafted by Novacek. Appx. 341-43 (Dep. Ex. 8, RVC-Apex Rebuttals). The 

rebuttals set forth answers to possible questions by call recipients, such as questions regarding 

for what purpose the money would be used. When recipients of the calls expressed unhappiness 

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with President Bush or the war in Iraq, the “rebuttal” script drafted by Novacek instructed the 

caller to state that the “money will not go to President Bush.” Appx. 341 (Dep. Ex. 8, Script 

Rebuttals). However, when call recipients requested official Bush-Cheney ’04 or Republican 

Party paraphernalia or information, the “rebuttal” did not clarify the misimpressions as to who 

was calling, but merely directed the recipient to the actual Bush-Cheney ’04 and RNC websites. 

Id. at 343; Appx. 141 (Dep. 141). 

Apex’s callers even explicitly stated that the calls were on behalf of the Republican Party 

on a number of occasions. For example, audio recordings provided to the Commission during its 

administrative investigation began by identifying the call as from the “Republican Party.” Appx. 

613, 616, 619, 621, 623, 626, 628 (call transcripts).2

 Those taped calls typically began with a 

statement like this: “Hello [recipient’s name] this is Alicia calling for the Republican Party.” 

Appx. 619. The caller then thanked the recipient for his past support, discussed the need to 

oppose Senator John Kerry and Democrats, and stated that the recipient’s support was necessary 

to “support our state candidates and President Bush.” Id. In at least one instance, after an 

individual agreed to make a contribution, he asked, “Now, this is the Republican Party?” to 

which the caller responded, “yes.” Appx. 619. The caller further stated at the end of the call that 

the contribution was not tax deductible, but included no disclaimer elements required by the 

Federal Election Campaign Act. 

 The calls were then followed up with letters and return envelopes. The letters included 

the following statements, which either explicitly or implicitly referred to the Republican Party: 

● “Contributions or gifts to the Republican Party are not 

deductible as charitable contributions.” 

 

2

 All twenty audio recordings of calls obtained by the Commission are concurrently being 

filed on compact disc. See Vasan Decl. Ex. 1. 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 14 of 29
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● “I’m grateful our Party can count on your help to support 

Republicans across the country win elections.” 

● “The Republican Party can count on my support to help 

candidates at the state and local level. I’m proud to help our Party

prepare for the November election.” 

● “I am proud to help the Republican Party prepare for the 

November election.” 

● “I’m grateful you are fully supportive of President Bush and our 

Republican Party.... Please join me to ensure our Party is ready to 

stand up to the liberal pundits.” 

Appx. 344 (Novacek Dep. Ex. 9 RVC form letter); Appx. 578-583 (form letter as received by 

solicitee) (emphases added). 

Many people believed they were contributing to the Republican Party, the RNC, or 

Bush-Cheney ’04. Nearly one hundred checks deposited by Novacek were made payable to 

those organizations, or the memo lines otherwise indicated that the money was intended for those 

entities. Appx. 639-747. 

The RVC deposited well over $50,000 as a result of the solicitations made by Apex for 

the RVC. Appx. 748-755. At the outset, Novacek collected the incoming contributions at a post 

office box she set up. Later, Novacek had Apex collect the contributions at a separate post office 

box. Appx. 554 (Maddux Aff. ¶¶ 14-15). In addition, Apex has been holding an additional 

$14,869 in contributions that were intended for the RVC that Novacek never took possession of 

due to her termination of the contract with Apex after Apex requested access to BPO’s bank 

statements in order to check the records of contributions. Appx. 554 (Maddux Aff. ¶ 15). 

On June 10, 2004, Novacek received a cease and desist letter from the RNC demanding 

that she stop holding out the RVC to the public as an official representative of the Republican 

Party. Appx. 336; Appx. 236 (Novacek Dep 236). 

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C. Novacek Arranged a Second Set of Solicitations by RVC through Advantage 

After terminating the contract with Apex in April 2004, Novacek and the RVC engaged 

in a second series of solicitation calls using a different contractor, Advantage Direct 

Communications, Inc. (“Advantage”). Novacek had been a professional acquaintance of the 

president of Advantage, Jeff Butzke, for many years. Appx. 558-61(Affidavit of Jeff Butzke 

dated September 23, 2006 (“Butzke Aff.”), ¶¶ 2-4). Mr. Butzke had extensive experience in 

professional political calling and had known Novacek through that work. Id. Butzke had hired 

Novacek as a consultant to Advantage in 2003 to assist Advantage in setting up two call centers 

in Nebraska and to help with training and other management issues. Id. ¶ 4. 

In October 2004, Novacek suggested to Butzke that Advantage engage in political calling 

for the RVC, which she described as a section 527 organization. Id. ¶ 5. Butzke had extensive 

experience in political calling and Advantage was already doing work for the RNC. Butzke 

understood that the RVC was not affiliated with the Republican Party, and Novacek did not 

convince Butzke otherwise. Appx. 560 (Butzke Aff. ¶ 6). Novacek approached Butzke to make 

these calls, even though she had already received a cease and desist letter from the RNC that 

indicated she should stop holding the RVC out to the public as an official representative of the 

Republican Party. Appx. 236 (Novacek Dep. 236). She did not, however, alter her call scripts to 

clarify the RVC’s status to call recipients after receiving the RNC’s letter. 

Advantage entered into an informal arrangement with Novacek through BPO and agreed 

to make calls on behalf of the RVC. Appx. 560 (Butzke Aff. ¶ 8). Novacek provided call lists 

and scripts; the calls solicited funds from people who had previously contributed to the RVC 

and, therefore, many of the contributors believed that they were contributing again to the 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 16 of 29
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Republican Party, RNC, or Bush-Cheney ’04. Appx. 559-60 (Butzke Aff. ¶ 5); Appx. 385, 394-

404 (Novacek Dep. Exs. 15, 18-19); Appx. 385-89 (RVC-Advantage Script dated October 2004); 

Appx. 390-94 (emails from Jody Novacek to Jeff Butzke dated Oct. 11, 2004). 

The script used by Advantage stated that the caller was calling on behalf of the 

Republican Victory Committee and that the recipient of the call had “supported our Committee 

in the past.” The caller further explained that the 

Presidential election is very close — which means our state and local candidate 

races could be at risk. Everything hinges on getting Republicans to the polls in 

two weeks. The Democrats are planning a massive Get-Out-The-Vote effort in 

[INSERT STATE] and we need your help to counter this. Otherwise the tax and 

spend liberals could win races from the White House to the state house and local 

offices. It’s crunch time and we need support to get every Republican to the 

polls. Help us defeat Democrats with an emergency gift of $[INSERT], to be 

used for Get-Out-The-Vote efforts. 

Appx. 385 (Dep. Ex. 15). See also Appx. 560 (Butzke Aff. ¶ 9) (explaining this was the script 

used by Advantage when it made calls on behalf of RVC). The calls also stated, “Election Law 

requires we ask your [o]ccupation and your [e]mployer” and informed the individual that 

“political contributions are not tax deductible.” Appx. 385 (Dep. Ex. 15, RVC-Advantage 

Script). The RVC received over $10,000 in credit card transactions from these calls. Appx. 756-

59; Appx 227-28 (Novacek Dep. at 227-28). 

As described above, the RVC received more than $75,000 from the solicitations made by 

Apex and Advantage. The defendants, however, made no contributions to any candidate or 

engaged in any political activity with the proceeds from these solicitations. Appx. 266 (Novacek 

Dep. 266). 

IV. ARGUMENT 

Summary judgment is appropriate if “there is no genuine issue as to any material fact and 

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Salge 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 17 of 29
11

v. Edna Independent School Dist., 411 F.3d 178, 184 (5th Cir. 2005); Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 250 (1986). As demonstrated below and in the supporting appendix, 

the Commission is entitled to summary judgment on each cause of action in its Complaint, as 

there is no genuine issue of material fact. Regarding the first cause of action, Novacek and the 

RVC fraudulently misrepresented themselves, see 2 U.S.C. § 441h(b)(1), in claiming to act on 

behalf of a candidate or political party committee. Similarly, the Commission is entitled to 

summary judgment on the second cause of action because BPO fraudulently misrepresented 

itself by participating in a plan or design to fraudulently misrepresent itself as acting on behalf of 

a candidate or political party. 2 U.S.C. § 441h(b)(2). The Commission is also entitled to 

summary judgment on the third cause action — for which the material facts were undisputed 

during the administrative process preceding this action — because Novacek and the RVC failed 

to include the required disclaimer in their solicitations. 2 U.S.C. § 441d(a),(c). 

 A. Novacek Fraudulently Misrepresented Herself, and the Entities she 

 Created and Operated, as Acting on Behalf of the Republican Party 

Novacek and the RVC knowingly and willfully violated 2 U.S.C. § 441h(b)(1) by 

fraudulently misrepresenting themselves as acting for or on behalf of a candidate or political 

party when they made phone calls and mailed solicitations on behalf of the Republican Party. 

Likewise, BPO knowingly and willfully violated 2 U.S.C. § 441h(b)(2) by participating in or 

conspiring to participate in a plan, scheme, or design to fraudulently misrepresent itself as acting 

for or on behalf of a candidate or political party for the purpose of soliciting contributions by 

phone and through the mail. 

Under section 441h(b), a person cannot fraudulently misrepresent herself as speaking, 

writing, or otherwise acting for or on behalf of any candidate or political party or employee or 

agent thereof for the purpose of soliciting contributions or donations; likewise, a person cannot 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 18 of 29
12

“willfully and knowingly participate in or conspire to participate in any plan, scheme, or design 

to” engage in this intentionally deceptive conduct regarding any of the misrepresentations 

described above. 2 U.S.C. § 441h(b); see also 11 C.F.R. § 110.16.3 Even absent an express 

misrepresentation, a scheme devised with the intent to defraud is a fraud if it was reasonably 

calculated to deceive persons of ordinary prudence and comprehension. See United States v. 

Thomas, 377 F.3d 232, 242 (2d Cir. 2004) (citing Silverman v. United States, 213 F.2d 405 (5th 

Cir. 1954)). The phrase “knowing and willful” indicates that “actions [were] taken with full 

knowledge of all of the facts and a recognition that the action is prohibited by law.” 122 Cong. 

Rec. H3778 (daily ed. May 3, 1976); see also FEC v. John A. Dramesi for Cong. Comm., 640 F. 

Supp. 985, 987 (D.N.J. 1986) (distinguishing “knowing” from “knowing and willful”). 

A knowing and willful violation may be established “by proof that the defendant acted 

deliberately and with knowledge” that an action was unlawful. United States v. Hopkins, 916 

F.2d 207, 214 (5th Cir. 1990). In Hopkins, an inference of a knowing and willful violation was 

drawn “from the defendants’ elaborate scheme for disguising their . . . political contributions . . 

. . ” Id. at 214-15. The evidence did not have to show that a defendant “had specific knowledge 

of the regulations” or “conclusively demonstrate” a defendant’s state of mind,” if there were 

“facts and circumstances from which the jury reasonably could infer that [the defendant] knew 

her conduct was unauthorized and illegal.” Id. at 213 (quoting United States v. Bordelon, 871 

F.2d 491, 494 (5th Cir. 1989)). 

Here, Novacek admitted she drafted the scripts and follow-up letters and hired Apex and 

Advantage to make the phone call solicitations. Appx. 118, 182-83 (Dep. 118, 182-83). The 

 

3

 Section 441h does not require all of the elements of common law fraud. Compare Aiken 

v. Rimkus Consulting Group Inc., 333 Fed. Appx. 806, 811-12 (5th Cir. 2009) (discussing nine 

elements). 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 19 of 29
13

scripts and letters repeatedly referred to “the Republican Party” in various formulations. The 

follow-up letters in particular referred five times to the Republican Party, including a statement 

that “contributions to the Republican Party are not tax-deductible.” Appx. 34, 578-83. 

Novacek repeatedly described the RVC as part of the Republican Party and/or the GOP in 

documents such as the contractual arrangement with Apex. Appx. 592-595 (Attachment 1 

Statement of Work #1); see also Appx. 372 (Dep. Ex. 13, Memo from Jody Novacek to Adam 

Booth dated January 14, 2004). Indeed, Apex and its employees held the reasonable belief they 

were working on behalf of the Republican Party because Novacek had told them that the RNC 

encompassed the RVC. Appx. 552. Novacek did not correct the phone bank employees and 

managers when they referred to the RVC as the Republican Party. Novacek’s statements to 

Apex employees led them reasonably to answer “yes” when recipients asked whether it was the 

Republican Party that was calling. Appx. 619 (transcript). Novacek also admitted that she knew 

those receiving the calls were confused as to the entity calling because many recipients asked for 

information for the RNC or Bush-Cheney ’04, confusion Novacek created and capitalized on. 

Appx. 142-43. 

The contrast between Novacek’s statements and conduct towards Apex — whose 

personnel had no reason to doubt that the RVC was a project of the RNC or Republican Party — 

and her statements and conduct towards Advantage — where Butzke affirmatively knew she was 

not connected to the RNC (Appx. 560) — belie any claim by Novacek that she thought she could 

freely represent herself as the Republican Party. For example, Novacek, in her dealings with 

Apex, made repeated references to the RNC/Republican Party in conversations and emails to 

employees of Apex (Appx. 592, 551-52, 372), while she made no references, either directly or 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 20 of 29
14

indirectly, in her dealings with Advantage through Butzke to suggest or imply a connection to 

the Republican Party or the RNC. 

The RVC never made any contributions to any candidate or any other political entity, and 

no political activities were undertaken by the RVC. Appx. 266. In addition, contributions 

specifically earmarked for entities such as the RNC or Bush-Cheney ’04 were never forwarded to 

those entities. After paying Apex and Advantage (the majority of the RVC’s disbursements), 

Novacek directed the remaining funds to herself or to the BPO entities. Appx. 453, 455-57, 461, 

463-65. Because Novacek represented herself as acting on the behalf of a political party and 

caused others to do so as well when they made phone calls and solicited contributions, this Court 

should find that Novacek, the RVC, and BPO knowingly and willfully violated 2 U.S.C. § 441h. 

B. Novacek and the RVC Violated the Act by Failing to Include the Required 

Disclaimer 

Novacek and the RVC violated the Federal Election Campaign Act by failing to include 

within their communications the required disclaimer information in the manner specified by the 

statute. Whenever “any person ... solicits any contribution” through various means, including a 

“mailing” or “any other type of general public political advertising,” the solicitation must contain 

a disclaimer. 2 U.S.C. § 441d(a); 11 C.F.R. § 110.11(a); see generally FEC v. Survival 

Education Fund, Inc., 65 F.3d 285, 296 (2d Cir. 1995). A public communication, for this 

purpose, includes any communication by “telephone bank.” 2 U.S.C. §§ 431(22),(24); 11 C.F.R. 

§§ 100.26, 100.28. If the communication is not authorized by a candidate, a candidate’s 

authorized political committee or agent, the disclaimers must state the name and street address, 

telephone number or Internet address of the person who paid for the communication and state 

that the communication is not authorized by any candidate or candidate’s committee. 2 U.S.C. 

§ 441d(a)(3); 11 C.F.R. § 110.11(b)(3). In printed material the disclaimer must be presented in a 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 21 of 29
15

clear and conspicuous manner, be of sufficient type size to be clearly readable, and be contained 

in a printed box set apart from the other content of the communication. 2 U.S.C. § 441d(c); 

11 C.F.R. § 110.11(c)(1), (c)(2)(i)-(ii). The disclaimer provision “serves important First 

Amendment values.” Survival Education Fund, 65 F.3d at 296. “Potential contributors are 

entitled to know that they are supporting independent critics of a candidate and not a group that 

may be in league with that candidate’s opponent.” Id.

 Novacek and the RVC violated 2 U.S.C. § 441d(a),(c) by failing to include in their 

communications the required disclaimer information in the manner specified by statute. In the 

RVC’s phone calls, the callers did not state the RVC’s permanent address, phone number or 

website address, or state that the solicitation was not authorized by a candidate or candidate 

committee. Appx. 339-40 (script); Appx. 613-33 (transcripts). In the RVC’s mailings, the 

written materials failed to include that same information and failed to include the formatting (a 

printed box set apart from the content of the communication) required for mailed solicitations. 

Appx. 34, 578-83. 

Although the calls and the follow-up letters stated that they were made (in the case of the 

calls) or paid for (in the case of the letters) by the “Republican Victory Committee,” it is 

undisputed that the telephone calls and letters did not contain a sufficient disclaimer as to who 

paid for or authorized the calls, despite the fact that they were direct solicitations for 

contributions. Novacek admitted that she knew she needed to use a disclaimer on the calls and 

mailers because of her prior political work, but claimed that her communications were only 

unintentionally out of compliance. Appx. 137 (Dep. 137). Her defense is not credible in light of 

the fraudulent scheme described above and her long experience with political fundraising, and in 

any event, her state of mind is irrelevant because the Commission does not seek a knowing and 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 22 of 29
16

willful finding with respect to defendants’ disclaimer violations. Accordingly, this Court should 

find that Novacek and the RVC violated 2 U.S.C. § 441d(a). 

 C. The Commission is Entitled to Summary Judgment 

 Regarding All Claims Brought Against the RVC and BPO 

 Entities Because They Have Not Appeared to Defend this 

 Action Through Counsel 

 

Novacek may represent herself (individually and as a corporate officer) on a pro se basis, 

but as a non-attorney she cannot represent the Republican Victory Committee, Inc., or either of 

the BPO entities. “[T]he ‘clear’ rule is ‘that a corporation as a fictional legal person can only be 

represented by licensed counsel.’” Donovan v. Road Rangers Country Junction, Inc., 736 F.2d 

1004, 1005 (5th Cir. 1984) (quoting K.M.A., Inc. v. General Motors Acceptance Corp., 652 F.2d 

398, 399 (5th Cir.1982); accord Southwest Express Co., Inc. v. Interstate Commerce Comm’n,

670 F.2d 53, 56 (5th Cir. 1982). Because the RVC and BPO entities have not entered an 

appearance and have not defended this case, the Court should enter summary judgment in the 

Commission’s favor against these defendants. 

 D. The Court Should Fashion Remedies that Will Effectively Deter these 

 Defendants and Other Persons From Engaging in Similar Unlawful 

 Activities and Undermining Important Public Interests 

The Act specifically authorizes four remedies in civil actions like this one to enforce its 

requirements: (1) a declaration that the defendants violated the Act; (2) assessment of a civil 

penalty for each violation of the Act; (3) an injunction to prevent repetition of the unlawful 

activities; and (4) any other appropriate order. 2 U.S.C. §§ 437d, 437g(a)(6)(B), (C). 

 The Act specifies higher penalties for violations of law that are knowing and willful. See

2 U.S.C. §§ 437g(a)(5)(B), 437g(d). 

1. The Court Should Declare that Novacek, RVC and BPO Violated 

the Act 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 23 of 29
17

The Commission has shown, supra pp. 11-13, that Novacek and RVC knowingly and 

willfully violated 2 U.S.C. § 441h(b)(1) by fraudulently misrepresenting themselves as acting for 

or on behalf of a political party for the purpose of soliciting contributions. Likewise, BPO, Inc. 

and BPO Advantage, LP knowingly and willfully violated 2 U.S.C. § 441h(b)(2) by participating 

in or conspiring to participate in a plan to fraudulently misrepresent themselves as acting for or 

on behalf of a political party for the purpose of soliciting contributions.

 Novacek and the RVC also failed to meet the disclaimer requirement in 2 U.S.C. 

§ 441d(a),(c) by failing to include on their communications some of the required disclaimer 

information in the manner specified by statute. Thus, the evidence supports a declaration that 

they violated 2 U.S.C. §§ 441h and 441d. 

 2. The Court Should Assess a Civil Penalty Sufficient to Deter Such 

 Violations and Vindicate the Compelling Interests Served by 

 the Provisions Violated 

 The assessment of a civil penalty under 2 U.S.C. § 437g(a)(6) rests within the sound 

discretion of the district court. Stockman v. FEC, 138 F.3d 144, 153 (5th Cir. 1998); AFL-CIO v. 

FEC, 628 F.2d 97, 100 (D.C. Cir. 1980); FEC v. Furgatch, 869 F.2d 1256, 1258 (9th Cir. 1989).4

 

The purpose of a civil penalty is not only to punish a violator, but also to deter the defendant and 

others who might consider engaging in similar activities. See United States v. ITT Cont’l Baking 

 

4

 In addition to assessing a civil penalty, the Court may, in its discretion, order Novacek, 

RVC and BPO to disgorge all the contributions they received as a result of their fraudulent 

misrepresentations. Disgorgement is not a sanction like a civil penalty, but an equitable remedy 

that would return the defendants to the position they would have been in had they not engaged in 

the fraudulent activity. “Disgorgement wrests ill-gotten gains from the hands of a wrongdoer. It 

is an equitable remedy meant to prevent the wrongdoer from enriching himself by his wrongs.” 

Allstate Ins. Co. v. Receivable Finance Co., 501 F.3d 398, 413 (5th Cir. 2007) (citing SEC v. 

Huffman, 996 F.2d 800, 802 (5th Cir.1993)); CFTC v. American Metals Exch. Corp., 991 F.2d 

71, 76 (3d Cir. 1993) (disgorgement is an appropriate remedy “for the purpose of depriving the 

wrongdoer of his ill-gotten gains and deterring violations of the law”) (internal quotation marks 

and citation omitted). In this case the Court should order disgorgement of the funds the 

defendants received as a result of their fraudulent misrepresentations. 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 24 of 29
18

Co., 420 U.S. 223, 231-32 (1975). To serve these purposes adequately, a civil penalty must be 

sufficiently large that potential violators will not regard it as “nothing more than an acceptable 

cost of violation, rather than as a deterrence to violation.” Id. See also, e.g., United States v. 

Reader’s Digest Ass’n, 662 F.2d 955, 966-67 (3d Cir. 1981). Cf. Sands, Taylor & Wood v. The 

Quaker Oats Co., 34 F.3d 1340, 1351 (7th Cir. 1994) (“There is no incentive to engage in . . . 

licensing negotiations when the consequence of getting caught for trade piracy is simply to pay 

what should have been paid earlier”); United States v. St. Michael’s Credit Union, 880 F.2d 579, 

588 (1st Cir. 1989) (“To have any real deterrent effect, the potential fine must be large enough to 

have some real economic impact on potential violators”). 

The penalty should also be substantial enough to emphasize the importance of the 

interests served by the provisions violated. Public confidence in the integrity of the fundraising 

process and, through it, the integrity of federal elections depends on the courts’ imposing large 

enough penalties to deter violations of these important protections. Section 441h was enacted in 

1974 to address such impersonation of candidates and party committees; in that era, “[t]elegrams 

h[ad] been sent falsely bearing the names of the parties.” 120 Cong. Rec. H7825 (daily ed. 

August 7, 1974). Here, Novacek’s calls and mailers forced the RNC to respond to the allegation 

during the presidential campaign that it had outsourced fundraising calls to a call center in India, 

in what the party committee described as harm to it and legitimate Republican Party efforts. 

Appx. 475-76 (administrative complaint alleging harm); id. at 503 (press release issued during 

presidential campaign). The fact that the RVC calls were perceived to be from the RNC is 

further bolstered by numerous press accounts of the RVC’s fundraising effort, some of which 

reported that the RNC was making fundraising calls from India, while others questioned the story 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 25 of 29
19

while nonetheless providing sources from India claiming to be working for the RNC. Appx. 

604-12 (press accounts). 

As the Act indicates, the amount of the civil penalty should rise in proportion to the 

seriousness of the violation. Here, the Court should assess an appropriate civil penalty against 

the defendants for each violation that they are found to have committed, not to exceed the greater 

of $11,000 per violation or 200% of the amount of the contribution or expenditure involved for 

each violation found to be knowing and willful, and not to exceed the greater of $6,500 or the 

amount of the contribution or expenditure involved for each violation not found to be knowing 

and willful. See 2 U.S.C. § 437g(a)(6)(B),(C); 11 C.F.R. § 111.24. The maximum civil penalty 

for the violations of the fraudulent misrepresentation provisions in 2 U.S.C. § 441h(b)(2), if 

calculated based on the amount in violation, is approximately $150,000.5

 Novacek received 

$50,292 as a result of the solicitations made by Apex for the RVC. Apex raised an additional 

$14,869 for the RVC, which Novacek never took possession of due to the termination of the 

contract between Apex and the RVC. RVC received approximately $10,063 in credit card 

transactions as a result of the calls made by Advantage on behalf of the RVC. Accordingly, the 

Court may impose a penalty as high as $150,000 for the violations of 2 U.S.C. § 441h. This 

level of penalty is explicitly authorized by the statute and is 200% of the total amount of illegal 

funds Novacek and her related entities raised.6

 

5

 Although the Commission could seek separate civil penalties from Novacek, RVC, and 

BPO, the Commission is seeking to hold the defendants jointly and severally liable for a single 

civil penalty for the violations at issue here. This approach reflects the fact that Novacek was 

solely responsible for RVC and BPO and will facilitate collection of the penalty. 

6

 The Court could impose a civil penalty for the violations of 2 U.S.C. § 441h by 

multiplying the $11,000 statutory penalty by the total number of fraudulent solicitations, 

resulting in a much larger penalty, but the Commission is not asking for that relief. 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 26 of 29
20

In addition, regarding the violations of 2 U.S.C. § 441d, the Commission requests the 

statutory penalty of $6,500 for each of the two sets of solicitations made by the two contractors 

hired by Novacek, for a total civil penalty of $13,000. In other words, the Court should impose a 

$6,500 statutory penalty for the failure to make the appropriate disclaimers in the solicitations 

made by Apex and another $6,500 for the failure to make the appropriate disclaimers in the 

solicitations made by Advantage. See 2 U.S.C. § 437g(a)(6); 11 C.F.R. § 111.24.7 

 3. The Court Should Grant Injunctive Relief 

 This Court should also impose a permanent injunction prohibiting the defendants from 

committing similar violations. The Act explicitly authorizes the Court to grant a “permanent” 

injunction upon a showing that a defendant has violated the Act. 2 U.S.C. § 437g(a)(6)(B). 

“Essentially, a court makes a prediction of the likelihood of future violations based on an 

assessment of the totality of the circumstances surrounding the particular defendant and the past 

violations that were committed.” SEC v. Bonastia, 614 F.2d 908, 912 (3d Cir. 1980). 

Defendants’ knowing and willful violations — even after receiving a cease and desist letter from 

the RNC — and Novacek’s failure to acknowledge that her conduct violated the law demonstrate 

that there is a sufficient likelihood of future violations to warrant a permanent injunction. 

An injunction merely prohibiting the defendants from engaging in similar violations 

would not harm the defendants. It would only preclude them from repeating the conduct already 

found to be illegal, Reader’s Digest Ass’n, 662 F.2d at 969-70, and thus would not interfere in 

any way with any future lawful activities. The public is entitled to the assurance that an 

 

7

 The Court could impose a civil penalty for the violations of 2 U.S.C. § 441d by 

multiplying the $6,500 statutory penalty by the total number of solicitations that failed to include 

the required disclaimer, resulting in a much larger penalty, but the Commission is not asking for 

that relief. 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 27 of 29
21

injunction, backed by the civil contempt power, would provide that neither Novacek nor the 

entities she created would repeat the sort of unlawful activity in connection with future elections. 

CONCLUSION 

 For the foregoing reasons, the Commission requests that this Court grant the 

Commission’s motion for summary judgment and: (1) declare that Novacek and the RVC 

knowingly and willfully violated 2 U.S.C. § 441h(b)(1) by fraudulently misrepresenting 

themselves as acting on behalf of a political party for the purpose of soliciting contributions; 

(2) declare that BPO knowingly and willfully violated 2 U.S.C.§ 441h(b)(2) by participating in a 

plan to fraudulently misrepresent themselves as acting for or on behalf of a political party for the 

purpose of soliciting contributions; and (3) declare that Novacek and RVC violated 2 U.S.C. 

§ 441d(a),(c) by failing to include in their communications some of the required disclaimer 

information in the manner specified by statute. The Court should permanently enjoin the 

defendants from engaging in such unlawful activity, assess an appropriate civil penalty, and 

grant any other appropriate relief. 

Respectfully submitted, 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 s/ Greg J. Mueller

Greg J. Mueller 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

Washington, DC 20463 

November 30, 2009 (202) 694-1650 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 28 of 29
1 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FEDERAL ELECTION COMMISSION, 

 Plaintiff, 

 v. 

JODY L. NOVACEK, et al., 

 Defendants. 

 

 Civ. No. 09-CV-00444 

 Certificate of Service 

CERTIFICATE OF SERVICE 

I hereby certify that, on November 30, 2009, I caused Defendant Federal Election 

Commission’s motion for summary judgment, memorandum of law and appendix in support, and 

proposed order to be served by email (pursuant to the stipulation of the parties under Fed. R. Civ. P. 

5(b)((2)(E)) upon: 

 Jody L. Novacek 

 jodylnovacek@hotmail.com 

 

s/ Greg J. Mueller

Greg J. Mueller 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

Washington, DC 20463 

November 30, 2009 (202) 694-1650 

Case 3:09-cv-00444-M Document 18 Filed 11/30/2009 Page 29 of 29