UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

FEDERAL ELECTION COMMISSION, 

 Plaintiff -Appellee, 

 v. 

JODY L. NOVACEK, et al., 

 Defendants-Appellants. 

No. 10-10516 

 MOTION FOR 

 SUMMARY AFFIRMANCE

APPELLEE FEDERAL ELECTION COMMISSION’S MOTION FOR 

SUMMARY AFFIRMANCE 

The Federal Election Commission (“Commission”) moves this Court to 

summarily affirm the district court’s decision granting the Commission’s motion 

for summary judgment. FEC v. Novacek, No. 09-444, slip op. (N.D. Tex. Apr. 14, 

2010) (Exh. 1) (“Op.”).1

 Appellants raised no genuine issue of material fact and 

the court below made no reversible error of law. See Fifth Cir. Rule 47.6 

(judgment may be affirmed without opinion when, inter alia, “no genuine issue of 

material fact has been properly raised by the appellant” and “no reversible error of 

law appears”); 2A Fed. Proc., L. Ed. § 3:917, Criteria for Summary Affirmance or 

Enforcement (2010); see, e.g., Kastner v. Texas Bd. of Law Exam’rs, 278 Fed. 

                                                           

1

 Pursuant to Fifth Circuit Rule 27.4, the Commission contacted Appellant 

Jody L. Novacek who stated she will oppose this motion.

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Appx. 346, 2008 WL 2048326 (5th Cir. 2008) (granting motion for summary 

affirmance). 

Based on admissions made by appellant Jody L. Novacek and facts that were 

not in dispute below, the district court correctly found that appellants made 

fundraising solicitations by phone and in mailers that fraudulently misrepresented 

the source of the solicitation as the Republican Party and the Republican National 

Committee (“RNC”). Op. at 4, 11. These fundraising solicitations — in which 

appellants purported to be acting on behalf of the Republican Party — were found 

by the court to be knowing and willful violations of the Federal Election Campaign 

Act, as amended, 2 U.S.C. §§ 431-55 (“FECA” or “Act”). Id. The district court 

also found, based on the solicitations’ text which Novacek admitted authoring, that 

Novacek and the Republican Victory Committee violated the Act by failing to 

include in those solicitations some of the required disclaimer information regarding 

who authorized and paid for the communications. Op. at 5, 11-12. 

The lower court found that appellants’ defense consisted only of 

“disputation of immaterial facts” and “unsubstantiated assertions, suggestions and 

arguments, which are not competent summary judgment evidence,” Op. at 7, and 

awarded summary judgment to the Commission through a straightforward 

application of the Rule 56 burden-shifting analysis. The court’s carefully 

supported decision should be summarily affirmed. 

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BACKGROUND 

I. THE COMMISSION 

The Commission is the independent agency of the United States government 

with exclusive jurisdiction over the administration, interpretation, and civil 

enforcement of the Act. Op. at 1 (citing 2 U.S.C. §§ 437c(b)(1), 437d(a), and 437g). 

The Act provides a detailed administrative process. 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 violation of the Act 

has occurred, authorizing the Commission to undertake an administrative 

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

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). 

II. APPELLANTS’ FUNDRAISING 

 Jody L. Novacek is an individual with previous experience working in 

telemarketing fundraising for political clients. Op. at 1. Novacek created, 

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operated, and wholly controlled appellants Republican Victory Committee 

(“RVC”), BPO, Inc., and BPO Advantage LP (the BPO entities are together 

referenced as “BPO”). Id. During the first half of 2004, Novacek — making 

contractual arrangements through BPO — hired Apex CoVantage, L.L.C. 

(“Apex”) to make telemarketing fundraising calls to solicit donations to RVC that 

stated or implied that RVC was raising money for the Republican Party. Op. at 2. 

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

created for use at Apex’s call center. Id. Apex or Novacek followed up on those 

calls with mailings requesting that call recipients mail in the contributions they had 

agreed to make. Id. RVC received nearly $50,000 as a result of these solicitations. 

Id. After receiving a cease-and-desist letter from the RNC, Novacek and RVC 

hired a different contractor, Advantage Direct Communications, Inc., to make a 

second series of similar solicitations that netted over $10,000 in contributions. Id.

at 2-3. Appellants did not use the proceeds to make any contributions to any 

candidate campaigns or political committee. Id. at 3. 

III. FEDERAL ELECTION CAMPAIGN ACT 

The district court found that appellants violated two statutory provisions. 

First, the court found that appellants violated 2 U.S.C. § 441h(b), which prohibits 

any person from fraudulently misrepresenting herself as speaking, writing, or 

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

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agent thereof for the purpose of soliciting contributions or donations; it also 

prohibits any person from “willfully and knowingly participat[ing] in or 

conspir[ing] to participate in any plan, scheme, or design to” engage in 

intentionally deceptive conduct regarding any of the misrepresentations described 

above. 2 U.S.C. § 441h(b); see also 11 C.F.R. § 110.16. 

 Second, the district court found that appellants violated 2 U.S.C. § 441d(a), 

which provides that when “any person ... solicit[s] 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 Educ. Fund, Inc., 65 F.3d 

285, 296 (2d Cir. 1995). 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 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). 

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ARGUMENT 

I. THE DISTRICT COURT CORRECTLY FOUND THAT 

APPELLANTS RAISED NO ISSUE OF MATERIAL FACT WITH 

RESPECT TO THEIR VIOLATIONS OF SECTION 441h(b) 

The district court correctly found that appellants knowingly and willfully 

violated the Act by fraudulently misrepresenting themselves as fundraisers for the 

Republican Party. Rather than disputing any material facts, Novacek offered 

speculative arguments, disputed immaterial facts, and attempted to excuse 

appellants’ unlawful conduct. A wealth of undisputed material facts supports the 

district court’s conclusions: 

• Novacek admitted that she drafted the solicitation scripts and hired call 

centers to place the solitication calls. Op. at 5, 7-8. 

• Novacek admitted that she authorized the scripts to be amended so that the 

calls opened with the statement that the call was on behalf of the 

“Republican Party.” Novacek admitted that the scripts repeatedly referred to 

the Republican Party and claimed that the funds would be used to support 

Republican candidates in the upcoming election. Op. at 5, 8. 

• Novacek does not dispute that the call center employees explicitly stated that 

the calls were on behalf of the Republican Party. Id.

• Novacek did not deny that she authored the follow-up letters, which refer 

five times to the Republican Party, state that contributions to the Republican 

Party are not tax-deductible, and suggest that any contribution would be 

used by the party to support candidates. Op. at 5. 

 

• Novacek did not dispute that many solicitees believed they were 

contributing to the Republican Party, the RNC, the GOP, or Bush-Cheney 

’04. The evidence demonstrated that Novacek deposited nearly one hundred 

checks that were made payable to those organizations or whose memo lines 

indicated that the money was intended for those entities. Op at 5-6. 

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• Novacek admits that she knew solicitees were confused as to the entity 

calling, because they would ask for information about the RNC or the BushCheney ’04 campaign or would send checks made out to those entities. 

Op. at 6. 

• Novacek did not dispute that the solicitation calls failed to state that RVC 

was not authorized by the Republican Party or any candidate. Op. at 5. 

• Novacek admits that after receiving a cease-and-desist letter from the RNC, 

she and RVC engaged in a second, similar series of solicitation calls and that 

Novacek again provided call lists and scripts. Op. at 6. 

• The second set of calls informed the solicitee that political contributions are 

not tax-deductible, but did not inform the solicitee that the solicitation was 

not approved by a political party or political candidate as required by statute. 

Id.

• Novacek and the RVC never made any contributions to any candidate or any 

other political entity. Id. Instead, after paying the vendors she hired, she 

directed the remaining funds to the BPO entities she controlled. Id. at 6-7. 

Novacek did not present any evidence to refute these facts and admissions, 

but relied instead on “unsubstantiated assertions, suggestions, and arguments.” 

Op. at 7. The district court correctly found that the few facts disputed by Novacek 

are not material. For example, Novacek disputes whether Tom Maddux, who 

worked for Apex (the vendor who placed the solicitation calls) was aware of the 

fact that RVC had no connection to the RNC. Id. As the district court held, 

however, Maddux’s “testimony is not necessary to demonstrate that the fundraising 

calls and letters Apex sent out at Novacek’s direction fraudulently misrepresented 

that they were on the behalf of the Republican Party.” Id. In other words, 

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Maddux’s awareness does not matter either way: If Maddux believed RVC was 

part of the RNC, as he testified, it is evidence that Novacek deceived Maddux; 

if Maddux knew RVC was not part of the RNC, as Novacek claimed, it would 

show only that non-party Maddux may have been complicit in the fraudulent 

enterprise. Because this disputed fact was not material to the findings against 

appellants, it provided no basis to deny the Commission’s motion for summary 

judgment. 

 With no evidentiary support, Novacek assserted that her call scripts might 

have been pirated (i.e., altered by the call centers) or that the recordings the 

Commission presented as evidence may have been fabricated. She did not, 

however, dispute the key elements of the call scripts and mailings, which she 

admitedly authorized, that claimed to be on behalf of the Republican Party. Op. 

at 5. Moreover, in the face of the Commission’s sworn testimony, authenticated 

recordings, and other documentary evidence, Novacek offered only 

unsubstantiated, speculative assertions, which are not competent summary 

judgment evidence. Op. at 7. 

 Finally, Novacek claimed that she believed she was entitled to represent that 

she was calling on behalf of the Republican Party, because, in her view, the RNC 

does not own that name. See Op. at 10. The district court correctly found this 

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position unsupportable because the Republican Party is an unincorporated 

association under the general management of the RNC. Id. 

 After the Commission carried its initial burden, Novacek provided no facts 

beyond statements in the pleadings and conclusory assertions. Op. at 7 & n.39. 

The clear implication of the scripts she admitted authoring was that she was 

fundraising for the Republican Party or the RNC; in fact, none of the funds were 

ever contributed to a political candidate or committee. Op. at 10. Accordingly, the 

lower court properly concluded that “Novacek fail[ed] to present competent 

evidence of any actual controversy of material fact warranting a trial on the 

Commission’s claims.” Op. at 11. The undisputed facts thus compel the 

conclusion that Novacek, RVC, and the BPO entities knowingly and willfully 

violated the fraudulent misrepresentation provision in 2 U.S.C. § 441h. Novacek 

— a sophisticated participant with decades of experience in telemarketing 

fundraising for political clients — misrepresented herself as acting on behalf of a 

political party and caused others to do so when soliciting contributions. 

II. THE DISTRICT COURT CORRECTLY FOUND THAT 

APPELLANTS’ SOLICITATIONS FAILED TO COMPLY WITH 

FECA’S DISCLAIMER REQUIREMENTS 

Appellants’ solicitations did not comply with FECA’s requirement that 

whenever “any person ... solicits any contribution” through a “mailing” or “any 

other type of general public political advertising,” the solicitation must contain a 

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disclaimer. 2 U.S.C. § 441d(a),(c); 11 C.F.R. § 110.11(a). Novacek does not 

dispute that in the solicitation calls, the callers did not state RVC’s permanent 

address, phone number or website address, or state that the solicitation was not 

authorized by a candidate or candidate committee as required by law. Op. at 6, 

11-12. Furthermore, Novacek does not dispute that RVC’s mailings failed to put 

that information in sufficient type size so that it was clearly readable and in a 

printed box set apart from the rest of the letters. Id. Novacek argues only that 

these violations were unintentional. Op. at 12. However, Novacek’s state of mind 

is irrelevant to this violation because intent is not an element of the offense, and 

the Commission is not requesting the higher civil penalties that would be available 

if Novacek acted intentionally regarding the disclaimer violations. Accordingly, 

the district court’s decision should be affirmed because the content of the written 

solicitations — which is not in dispute — on its face did not comply with the 

statutory disclaimer requirements. 

CONCLUSION 

 Because appellants made only unsubstantiated assertions that fail to create 

any genuine disputes over material facts, the Commission requests that this Court 

summarily affirm the Opinion and Order of the district court granting summary 

 

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judgment in the Commission’s favor, imposing a civil penalty of $47,414.15, and 

enjoining appellants from future similar violations of the Act. See Fifth 

Cir. Rule 47.6 . 

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 

July 12, 2010 (202) 694-1650 

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CERTIFICATE OF SERVICE

I hereby certify that on July 12, 2010, I will cause the Appellee 

Federal Election Commission’s Motion for Summary Affirmance to be filed 

electronically using the Court’s CM/ECF system, which will then send a 

notification of such filing to any counsel or party using the system. I further 

certify that I caused the foregoing to be served by email on DefendantAppellant Jody L. Novacek at: jodylnovacek@hotmail.com. 

s/ Greg J. Mueller 

Greg J. Mueller 

COUNSEL FOR PLAINTIFF-APPELLEE 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

gmueller@fec.gov 

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