NO. 16-15859

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FEDERAL TRADE COMMISSION, 

Plaintiff-Appellee, 

v.

GLEN BURKE, 

Defendant-Appellant. 

On Appeal from the United States District Court

for the District of Nevada 

No. 2:97-cv-00750-GMN-VCF

Hon. Gloria M. Navarro, Chief U.S. Distr. J.

ANSWERING BRIEF

FOR THE FEDERAL TRADE COMMISSION

JESSICA RICH

Director

SARAH WALDROP

REENAH L. KIM

Attorneys

Bureau of Consumer Protection

DAVID C. SHONKA

Acting General Counsel

JOEL MARCUS

Deputy General Counsel

IMAD D. ABYAD

Attorney

FEDERAL TRADE COMMISSION

600 Pennsylvania Ave., N.W.

Washington, DC 20580

(202) 326-3579

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TABLE OF CONTENTS

Page

INTRODUCTION ...................................................................................... 1 

JURISDICTION ........................................................................................ 2 

QUESTIONS PRESENTED ..................................................................... 3 

STATEMENT OF THE CASE .................................................................. 4 

1. The Original Action................................................................. 5 

2. Burke’s Direct-Mail Sweepstakes Operation ......................... 7 

3. Burke’s Refusal to Testify on Fifth Amendment 

Grounds .................................................................................17

4. Contempt Proceedings ..........................................................18

STANDARD OF REVIEW.......................................................................22

SUMMARY OF ARGUMENT................................................................. 23

ARGUMENT ...........................................................................................26

I. THE EVIDENCE FULLY SUPPORTS THE DISTRICT COURT’S 

DECISION TO HOLD BURKE IN CONTEMPT FOR VIOLATING 

THE 1998 INJUNCTION .....................................................................26

II. THE FTC WAS NOT REQUIRED TO BRING A NEW CASE 

AGAINST BURKE...............................................................................35

CONCLUSION ........................................................................................37

STATEMENT OF RELATED CASES ....................................................37

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

CASES PAGE

Alaska Fish & Wildlife Fed’n and

Outdoor Council, Inc. v. Dunkle,

829 F.2d 933 (9th Cir. 1987) ...................................................................37

Armstrong v. Brown, 

768 F.3d 975 (9th Cir. 2014) ...................................................................31

Christy v. Atchison, T. & S.F. Ry. Co., 

233 F. 255 (8th Cir. 1916) .......................................................................31

Cliffdale Assocs., Inc., 

103 F.T.C. 110 (1984) ..............................................................................35

FTC v. Affordable Media, LLC, 

179 F.3d 1228 (9th Cir. 1999) ................................................................. 23

FTC v. Cyberspace.com, LLC, 

453 F.3d 1196 (9th Cir. 2006) ................................................................. 35

FTC v. EDebitPay, LLC, 

695 F.3d 938 (9th Cir. 2012) ........................................... 22, 23, 33, 35, 36

FTC v. Kuykendall, 

371 F.3d 745 (10th Cir. 2004) ................................................................. 36

FTC v. Publ’g Clearing House, Inc., 

104 F.3d 1168 (9th Cir. 1997) ................................................................. 29

FTC v. Trudeau, 

579 F.3d 754 (7th Cir. 2009) ...................................................................36

Harris v. Diamond Constr. Co., 

36 S.E.2d 573 (Va. 1946).........................................................................31

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CASES (CONT’D) PAGE

Heckler v. Cheney, 

470 U.S. 821 (1985) .................................................................................37

Irwin v. Mascott, 

370 F.3d 924 (9th Cir. 2004) ...................................................................23

Link v. Wabash R.R. Co., 

370 U.S. 626 (1962) ........................................................................... 31, 32

McGregor v. Chierico, 

206 F.3d 1378 (11th Cir. 2000) ...............................................................36

Moore v. Allied Chem. Corp., 

480 F. Supp. 377 (E.D. Va. 1979)............................................................31

Nationwide Life Ins. Co. v. Richards, 

541 F.3d 903 (9th Cir. 2008) ...................................................................32

Reebok Int’l Ltd. v. McLaughlin, 

49 F.3d 1387 (9th Cir. 1995) ..................................................................... 3 

SEC v. Hickey, 

322 F.3d 1123 (9th Cir. 2003) ................................................................. 35

Soremekun v. Thrifty Payless, Inc., 

509 F.3d 978 (9th Cir. 2007) ...................................................................29

Spallone v. United States, 

493 U.S. 265 (1990) ................................................................................... 3 

Thompson v. Enomoto, 

915 F.2d 1383 (9th Cir. 1990) ................................................................. 33

United States v. $133,420.00 in U.S. Currency, 

672 F.3d 629 (9th Cir. 2012) ...................................................................32

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CASES (CONT’D) PAGE

United States v. Bright, 

596 F.3d 683 (9th Cir. 2010) ...................................................................23

United States v. Kama, 

394 F.3d 1236 (9th Cir. 2005) ................................................................. 33

STATUTES

15 U.S.C. § 53 ............................................................................................ 2 

15 U.S.C. § 57b .......................................................................................... 2 

15 U.S.C. § 6102 ........................................................................................ 2 

15 U.S.C. § 6105 ........................................................................................ 2 

28 U.S.C. § 1291 ........................................................................................ 3 

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INTRODUCTION

A 1998 consent decree permanently enjoined appellant Burke

from “[m]isrepresenting, in any manner” or “failing to disclose” any fact 

material to a consumer’s decision to purchase any good or service, and 

from “[a]ssisting others in” any such misrepresentation. Burke violated 

the injunction, and the Federal Trade Commission sought to have him 

held in contempt. After a hearing and review of extensive evidence that 

Burke played a central role in a sweepstakes scheme that bilked 

consumers out of millions of dollars, the district court held Burke in 

contempt and ordered him to pay compensatory sanctions for the 

consumer losses.

On appeal, Burke does not dispute that the injunction forbade him 

from making or enabling material misrepresentations to consumers. 

Nor does he deny that the FTC introduced voluminous evidence of his 

activities. Nor does he deny that the court could draw adverse 

inferences from his refusal to testify, on Fifth Amendment grounds, 

about his role in the deceptive scheme. Burke merely disagrees with the 

district court’s interpretation of the record evidence. But his preferred 

interpretation does not nearly demonstrate that the court committed 

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clear error in its factual findings. The extensive record showing that 

Burke played a key role in the sweepstakes scheme contradicts his

naked assertions on appeal that he was not responsible for the 

deceptive solicitations and that those solicitations were not “material to 

a consumer’s decision to purchase any item, product, good, service, or 

investment.” Overwhelming evidence proves that Burke commissioned,

reviewed, and approved the deceptive solicitations. Consumers sent him 

millions of dollars in exchange for his empty promises of “life-changing” 

prizes. The district court properly held him in contempt for that 

conduct, which plainly violated the injunction. 

JURISDICTION

The district court had jurisdiction over the FTC’s original action 

pursuant to Sections 13 and 19 of the FTC Act, 15 U.S.C. §§ 53, 57b, 

and Sections 6102 and 6105 of the Telemarketing and Consumer Fraud 

and Abuse Prevention Act, 15 U.S.C. §§ 6102, 6105. The FTC’s original 

action resulted in the court’s entry of a Stipulated Final Order for 

Permanent Injunction and Settlement of Claims for Monetary Relief, 

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dated October 1, 1998 (hereinafter, the “1998 Injunction”). EOR_123-

139.1

The district court had inherent power to enforce compliance with 

its decrees through contempt proceedings. See, e.g., Spallone v. United 

States, 493 U.S. 265, 276 (1990); Reebok Int’l Ltd. v. McLaughlin, 49 

F.3d 1387, 1390 (9th Cir. 1995).

The district court’s final contempt judgment was entered March 

16, 2016, and Burke filed a timely notice of appeal on May 11, 2016.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

QUESTIONS PRESENTED 

1. Whether the district court properly held Burke in contempt of 

the 1998 Injunction for his central role in a deceptive scheme; and

2. Whether the FTC was required to bring a new case against 

Burke rather than enforcing the existing injunction through contempt 

proceedings. 

 

1 “EOR” refers to appellant’s Excerpts of Record. “SER” refers to the 

FTC’s Supplemental Excerpts of Record, filed herewith. “D.xxx” refers 

to the district court’s Docket’s Document Number.

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STATEMENT OF THE CASE

A permanent injunction entered against Burke in 1998 bars him 

from telemarketing and from misrepresenting any fact material to a 

consumer’s decision to purchase any good or service. EOR_127-128. 

Burke nevertheless engaged in two separate activities that violated the 

injunction. First, he engaged in telemarketing, and in January 2013, 

the FTC moved the district court to hold Burke and a co-defendant in

contempt for violating the 1998 Injunction’s prohibition on 

telemarketing. Second, Burke ran a sweepstakes contest, and in March

2013 the FTC filed a separate contempt motion seeking to hold Burke in 

contempt for violating the prohibition on material misrepresentations. 

EOR_169-630. This case concerns the second violation.

After a consolidated hearing on both motions, the district court

(Phillip M. Pro, J.) held, on September 27, 2013, that Burke and his codefendant violated the 1998 Injunction. EOR_122. The court ordered 

Burke to pay $20,174,740.36 in sanctions for the consumer losses from 

the two contumacious schemes. The co-defendant was found jointly and 

severally liable for $2,785,508.36, the amount attributed to the 

telemarketing scheme. Id. 

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Burke appealed the misrepresentation judgment, but not the 

telemarketing judgment. On appeal, this Court reversed and remanded 

the case for further proceedings, because the findings as to the 

sweepstakes operation “d[id] not afford [this Court] a clear 

understanding of the basis of decision.” Memorandum, FTC v. Glen 

Burke, No. 13-17448 (9th Cir. June 11, 2015), at 3 (hereinafter, “Glen 

Burke I”). EOR_070-073. 

On remand, the district court (Gloria M. Navarro, C.J.)

reconsidered the record and again held Burke in violation of its 1998 

Injunction. In the judgment on review, the court issued detailed 

Findings of Fact and Conclusions of Law (EOR_002-019, hereinafter, 

“Op.”) and ordered Burke to pay $17,389,232 in sanctions. EOR_019. 

1. The Original Action

The FTC sued Burke and others in 1997 for violating the FTC Act

by running a scheme to sell bogus investments in commercial film 

production partnerships. Op. ¶1 [EOR_002].2 Along with other 

 

2 Burke was no stranger to federal law enforcement. In 1991, he shut 

down a telemarketing operation after the Postal Inspection Service 

executed search warrants. PX3 ¶3 [SER_025]. In 1996, the FTC 

obtained a default judgment against Burke for violations of the FTC Act 

arising from a business opportunity scam. PX1 ¶30 & Att. T [SER_005, 

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defendants, Burke settled the suit by agreeing to the 1998 Injunction. 

EOR_123-139; Op. ¶3 [EOR_003]. As pertinent here, that injunction

provided:

II. THEREFORE, IT IS HEREBY ORDERED that 

defendants and their agents, employees, officers, and 

servants, and all other persons or entities in active concert 

or participation with them who receive actual notice of this 

order by personal service or otherwise, in connection with 

the advertising, promotion, offer for sale, or sale of any item, 

product, good, service, or investment interest of any kind, 

* * * are hereby restrained and enjoined from:

 * * * 

B. Misrepresenting, in any manner, directly or by 

implication, or failing to disclose any fact material to a 

consumer’s decision to purchase any item, product, 

good, service, or investment * * *; 

C. Assisting others in violating any provision in 

Subsections A and B of this Paragraph;

* * * 

III. IT IS FURTHER ORDERED that * * * Glen Burke * * *

[is] hereby permanently restrained and enjoined from either 

 

007-017]. In 1997, the Securities and Exchange Commission obtained 

an order against Burke for failing to disclose to investors that at least 

five States had sued his publicly traded telemarketing firm. PX1 ¶31 & 

Att. U [SER_005, 018-022]. Most recently, on August 31, 2016, Burke 

was indicted for conspiracy to commit mail and wire fraud stemming 

from the same telemarketing scheme in the FTC’s civil contempt 

proceeding. United States v. Glen Burke et al., No. 2:16-cr-262-JAD-PAL 

(D. Nev., filed Aug. 31, 2016) [SER_223-233]. 

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(1) engaging in telemarketing; or (2) assisting others in 

telemarketing.

EOR_126-128; see Op. ¶2 [EOR_002]. 

2. Burke’s Direct-Mail Sweepstakes Operation

The district court found that from at least 2008 until January 

2013, Burke orchestrated a direct-mail sweepstakes operation that 

violated the 1998 Injunction. He falsely told consumers that they could 

collect substantial amounts of money in exchange for a small processing 

fee. Op. ¶¶4, 7, 9, 28-32 [EOR_003-04, 008]. His mailers “directed 

recipients to send back” $20-$30 in “fees” in order to claim the 

“advertised payouts worth hundreds of thousands or even millions of 

dollars in ‘cash prizes,’ ‘sweepstakes payments,’ or other ‘unclaimed’ or 

‘unawarded’ funds.” Op. ¶¶9, 7 [EOR_003-04]. See, e.g., PX22 Att. D at 

68 [EOR_309] (“Include the $26.59 Transfer Fee for processing this 

$532,500.00 Stimulus Rebate Benefit into your name”); id. at 70 

[EOR_311] (“You must mail the form below with your processing fee [of 

“$27.95”] in order to process your application * * * Maximum Prize: 

$458,389.00”); id. at 75 [EOR_316] (“Access to documentation for these 

additional monies–$7,041,846–requires $20 research and processing 

fee”); id. at 6 [EOR_246] (for “financial services fee of $24.94,” “I am 

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prepared to * * * send you a check for cash, and upon your timely filing 

and remittance, the mandatory and requisite data for your claim(s) to 

sponsored sweepstakes awards now totaling: $2,036,444.88”). 

Considerable evidence, largely from Burke’s own files, showed 

that, at a minimum, “Burke played a crucial role in the key aspects of

the sweepstakes operation.” Op. ¶77 [EOR_15]. He commissioned, 

reviewed, and approved the sweepstakes mailers, overseeing the 

copywriting and design processes to ensure they had enough “heat” to 

entice consumers. For example, in one email, Burke asked his

copywriter to produce a solicitation mailer with “more heat” and 

explained that he planned to test both versions to see which worked 

better. PX22 Att. M at 35-36 [EOR_412-413]; see Op. ¶¶17-19

[EOR_005-06]; PX22 Att. M at 32-34 [EOR_409-411] (Burke instructing 

new copywriter); id. at 37-42 [EOR_414-419] (Burke approving a 

sweepstakes mailer design “to simulate what a contract looks like”).

Burke also directed the mailing of his sweepstakes solicitations to 

consumers, using information he personally obtained from list brokers. 

Op. ¶20 [EOR_006]; PX22 Att. M at 49-53 [EOR_426-430]; PX31 Att. C 

at 40-58, Att. G [SER_181-199, 214-222]. 

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Burke registered dozens of fictitious companies to send his 

sweepstakes mailers, which used fonts, graphics, and wording that 

Burke selected to convey officialdom and urgency, in order to pressure

consumers into sending Burke money. In one mailer, for example, 

Burke sent a certificate-like letter from the “Office of the Director, 

Security Services,” declaring that the addressed consumer “Has Won A 

Cash Prize!” and warning the consumer to “Respond Immediately or 

Risk Forfeiture!” PX22 Att. D at 14 [EOR_254]. See Op. ¶¶10-12, 14 

[EOR_004-05]; PX22 Att. D at 6 [EOR_246] (“Certified Letter” from 

“Hancock Financial Services”); id. at 20 [EOR_260] (bar-coded letter 

from “Peterson & Associates” concerning “Disclosure of Unclaimed 

Funds”).3

Some of Burke’s mailers contained blocks of dense text, printed on 

the back, purporting to disclose details of the contest that the recipient 

had “already won.” Op. ¶13 [EOR_005]; see, e.g., PX22 Att. D at 65, 69, 

 

3 Other mailers used fonts and layouts used in tax forms, or looked like 

checks or bond certificates. See, e.g., PX22 Att. D at 18, 35, 55, 56, 62

[EOR_258, 275, 295, 296, 302]. Sample mailers found on Burke’s desk 

at his Las Vegas offices also included the stamp “Official Certification” 

with a seal for the “Property Auditor,” and a purported “Award 

Voucher-Payments & Transfers” form with an “Official Document” 

watermark printed across it. PX22 Att. B at 2, 5 [EOR_192, 200].

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71, 74 [EOR_305, 310, 312, 315]. Some of these “consumer disclosures”

provided the odds of winning the various prizes in the sweepstakes, 

including the payout represented on the front of the mailer, conveying 

the impression of how “lucky” the consumer must have been and 

reinforcing the message that a large payout awaited the consumer. Id. 

at 69, 71 [EOR_310, 312]. 

 Consumers who did not send any money in response to Burke’s 

initial mailers were sometimes sent an additional flier, designed by 

Burke to underscore the message that payment of the fee was “the only 

remaining impediment to receiving a ‘life-changing’ cash payout.” Op. 

¶15 [EOR_005]. The flier contained a “Winner’s Satisfaction Survey” 

that conveyed the impression that the recipient consumer should 

already have received a large-enough cash prize to, for instance, “Buy a 

new home” or “Buy a new car.” PX22 Att. D at 45 [EOR_285]. Burke 

was directly involved in the creation and design of that alleged survey.

See PX22 Att. M at 43-48 [EOR_420-425]. He was similarly involved in 

designing a “Trouble Ticket”—ostensibly to use in the event that the 

consumer did not receive his or her “life changing” prize—that promised 

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a “Replacement Winner’s Sweepstakes Check” for a fee of $20.25. Id. 

at 44 [EOR_284].4

Burke never delivered the huge sums of money that his mailers

promised. One of Burke’s employees testified that consumers often 

received, instead, booklets about how to enter more sweepstakes. Op. 

¶¶27-28 [EOR_007-08]; PX28 at 15:21-25, 29:1-7, 88:11-19 [SER_033, 

036, 041]. Files designated for shredding at Burke’s offices, PX31 ¶¶14, 

16 [SER_179], contained numerous letters from consumers complaining 

that they had sent money but never received the promised payouts. 

E.g., PX22 Att. B at 25, 31 [EOR_220, 226]; PX22 Att. D at 3, 4, 7, 8, 14-

20, 22-23, 25-36, 38-39, 42-43, 47-48, 49-51, 52-53, 58-59, 60-61

[EOR_243-44, 247-48, 254-260, 262-63, 265-276, 278-79, 282-83, 287-

292, 298-301]; see Op. ¶¶29-30 [EOR_008]. Burke arranged for some of 

these consumers to receive trivial amounts—typically less than $2—as 

 

4 Burke was especially aggressive to consumers who were lured by his 

initial mailer and sent money in anticipation of a large prize payout. 

Op. ¶21 [EOR_006]. Burke directed his list brokers to compile new 

mailing lists of those responsive consumers, PX31 Att. C at 40-52 [SER_ 

181-193], whom Burke then targeted with an avalanche of as many as 

40 additional mailers, promising more payouts and seeking more 

money—prompting one of his list brokers to remark to him in an email, 

“Seems like a lot, but I guess you know what your [sic] doing.” Id. at 42

[SER_ 183]. 

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their “winnings.” Op. ¶¶31-33 [EOR_008]; see, e.g., PX22 Att. D at 41

[EOR_281] (fulfillment prize of $1.12), 49-51 [EOR_289-291] (fulfillment

prize of $0.79 sent in response to consumer’s demand letter); PX28 at 

29:12-25 [SER_036] (Burke’s employee testifying that $1.12 was a 

typical amount of prize money actually sent to consumers); PX22 Att. M 

at 144-45 [EOR_521-22] (Burke noting the same). 

The district court determined that Burke sought to evade 

detection by law enforcement agencies by using other people as fronts, 

often a Panamanian associate named Errol Seales. They served as the 

nominal principals and actors, while he conducted all of the day-to-day 

business. Op. ¶¶38-44, 46-47 [EOR_009-011]; see, e.g., PX22 Att. M at 

18-22, 56-59, 76-78, 144 [EOR_395-99, 433-36, 453-55, 521]; PX31 Att. 

C at 59, 62-69 [SER_200, 203-210]. For example, Burke rented

mailboxes in the Netherlands, but the invoices were in Seales’s name. 

Op. ¶44 [EOR_010]; PX22 Att. M at 2-5, 9-13 [EOR_379-382, 386-390]; 

PX31 Att. C at 60-62 [SER_201-03]; see id. at 65 (Burke’s associate 

reporting that Seales was asked to “send over his paperwork” to open 

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new mailboxes for Burke) [SER_206].5 Burke also used Seales’s name 

on corporate formation documents, id. at 76, 144 [EOR_453, 521], and 

on accounts with payment processors, even though Burke controlled all

disbursements from those accounts. Op. ¶39 [EOR_010]; see, e.g., PX22 

Att. M at 6-8 [EOR_383-85]; PX31 Att. C at 66-69, 72 [SER_207-210, 

213]; PX30 ¶¶6-7 [SER_173]. 

One incident vividly illustrates Burke’s role as the puppeteer of 

the operation. In January 2012, a FedEx package addressed to Burke’s

business address containing $12,000 in cash burst in transit, prompting 

inquiries from U.S. Customs and the FBI. Op. ¶45 [EOR_010-11]. Burke 

and one of his associates planned to conceal Burke’s involvement by 

having Seales claim ownership of the package. Id.; PX22 Att. M at 23-

28 [EOR_400-05]. The associate sought Burke’s review and approval of 

 

5 Burke actively managed the mailboxes used to receive consumer 

payments. He often hired fronts to rent numerous boxes in multiple 

jurisdictions. Op. ¶¶23, 25 [EOR_007]; PX22 Att. M at 60-78 [EOR_437-

455]. Burke’s fronts opened mailboxes for him in California, New 

Jersey, Pennsylvania, Illinois, Mexico, Panama, the Netherlands, and 

elsewhere. Op. ¶25 [EOR_007]; see, e.g., PX22 Att. D at 19, 69

[EOR_259, 310]; PX22 Att. M at 20-22, 60-68 [EOR_397-99, 437-445]; 

PX1 Att. V at 2 [SER_024]. One associate wrote to Burke that “we don’t 

want all our eggs in one basket (box),” which “just makes it easier to get 

popped for everyone.” PX22 Att. at 76 [EOR_453]. 

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a draft message to Burke’s contact in the Netherlands asking her to 

shield Burke’s name from discovery by the U.S. authorities. The draft 

read: 

I have become aware of the issue regarding FedEx and 

Errol’s package. While I don’t wish to imply I’m trying to tell 

you what to do, I do believe some caution needs to be taken if 

you have to deal with US authorities. Regardless of who you 

have interaction with on a day to day basis you should be 

very careful if you are asked who the client is and only give 

the information used for billing. Several of the people you 

deal with on a regular basis are consultants only and not 

principals in any of the businesses and I believe they should 

not be brought into the mix (for example, Glen [Burke] is 

only a consultant, Errol is the principal). While not 

anticipating that you will have any contact, having much 

experience in the industry in the States for many years, I 

know an unsatisfactory outcome could affect the consultant’s 

ability to earn a living if they were brought into the picture 

needlessly.

PX22 Att. M at 23 [EOR_400]. Earlier, however, Burke had forcefully 

reminded Seales who was truly in charge, writing to him in 2010: 

Errol I really don’t get what you’re doing * * * you said you 

wanted to get back into fold with all of us and start making 

money again and I don’t have a problem with that but you’re 

not going to run the show * * * I gave you some ideas that 

would be helpful to the group and further the programs 

along but I have seen no results as of yet * * *.

PX22 Att. M at 57 [EOR_434]. Seales acknowledged his role, 

responding: “I’m the last person on the Totem Pole, so to speak, here in 

Panama, and no way am I trying to take over * * * I do not want to 

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manage anyone, the stress is to [sic] much. I want to be just another 

employee * * *.” Id. at 56-57 [EOR_433-34].

Burke scammed consumers out of millions of dollars. Most 

consumers sent money via check or money order made out to one of the 

myriad fictitious names Burke used on his mailers. Op. ¶48 [EOR_011]; 

see, e.g., PX22 Att. D at 84-93 [EOR_325-334] (consumers’ checks found 

in Burke’s offices). Burke deposited some of these checks and money 

orders into overseas bank accounts, PX22 Att. M at 14-22 [EOR_391-

99], but the majority of them were processed through a foreign check 

processor that held the money on Burke’s behalf. Op. ¶¶49-51

[EOR_011]; see Declaration of Thomas A. Seaman in Support of 

Preliminary Injunction (D.167) (hereinafter “Receiver Decl.”) ¶¶4-5 

[SER_235-36]; PX28 at 31:8-21, 32:8-24 [SER_037-38]; PX30 ¶¶3-7 

[SER_172-73].6

 

6 Burke paid his expenses by directing the check processor to wire 

money from his accounts to his copywriters, list brokers, and fronts. Op. 

¶¶39, 46, 52 [EOR_010-12]; Receiver Decl. ¶5 & Att. A [SER_235-36, 

238-259]; PX22 Att. M at 6-8 [EOR_383-85]; PX30 ¶7 [SER_173]. Burke 

tapped his profits by directing the check processor to wire money to his 

print shop, which in turn issued checks for those wired funds to Burke’s 

own company, Merchant’s Depot. Op. ¶53 [EOR_012]; Receiver Decl. ¶5

& Atts. A, B [SER_235-36, 238-266]. 

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Since 2007, Burke’s foreign check processor has credited 

$17,576,927 to Burke’s accounts. Op. ¶56 [EOR_012]; PX30 ¶¶9-13

[SER_174-75]. That figure likely underestimates the total income, for 

about ten percent of the proceeds were cash and would not have gone 

through the check processor. Op. ¶55 [EOR_012]; see PX31 Att. C at 70-

71 (Burke’s associates confirming that “all the boxes averaged almost 

10% in cash!”). Burke thus likely received from consumers an additional 

$1,952,992 in cash, for total receipts of $19,529,919. Op. ¶¶56-57

[EOR_012].7 The check processor debited Burke’s accounts by

$2,140,687 for various reasons, including refunds to consumers or 

because consumer checks failed to clear. PX30 ¶¶8-13 [SER_174-75].8

Thus, assuming that the check processor’s entire debit amount was 

 

7 These figures conservatively estimate Burke’s proceeds because they 

do not account for the checks and money orders that bypassed the check 

processor and were deposited directly into overseas bank accounts, or 

for cash deposited into those accounts. See, e.g., PX22 Att. M at 14-22

[EOR_391-99].

8 Burke provided no accounting of refunds to consumers whose 

payments he deposited directly in overseas accounts. Op. ¶60 

[EOR_012].

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deemed consumer refunds,9 Burke’s direct-mail sweepstakes operation 

resulted in at least $17,389,232 in consumer losses. 

3. Burke’s Refusal to Testify on Fifth Amendment 

Grounds

Commission staff sought to depose Burke regarding his role in the 

sweepstakes operation. Burke refused to answer any questions, citing 

his Fifth Amendment privilege against self-incrimination. Op. ¶¶19, 26, 

37, 47, 60 [EOR_006-012]; see PX29 [SER_042-171]. Burke asserted this 

privilege on all subjects relevant to his contempt liability and the 

measure of compensatory sanctions, including:

• his stipulation to, and the district court’s entry of, the 1998 

Injunction, PX29 at 13:4-14:12 [SER_044-45]; 

• his control of the direct-mail sweepstakes operation, id. at 103:13-

104:10 [SER_108-09]; 

• his role in developing the sweepstakes mailers, id. at 104:11-

117:12, 125:5-128:20 [SER_109-126]; 

 

9 The $2,140,687 debit figure obtained from the check processor’s 

records likely overestimated the amount of money returned to 

consumers. The processor had records regarding the nature of all debits 

only from July 15, 2011, forward. PX30 ¶¶5, 8 [SER_173-74]. Records 

before that date denote only outgoing wire transfers ordered by Burke.

Id. The $2,140,687 figure therefore may include payments to Burke 

himself. Id. 

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• his purchase of leads and mailing lists for the direct-mail 

operation, id. at 130:10-131:11 [SER_127-28]; 

• his failure to deliver the prizes promised in his sweepstakes 

mailers, id. at 131:13-142:7 [SER_128-139]; 

• his network of fronts, and his efforts to evade detection by law 

enforcement agencies, id. 144:1-163:6 [SER_140-159]; and

• the amount of consumer losses caused by his contumacious 

activities, id. at 164:12-175:4 [SER_160-171]. 

In light of Burke’s refusal to testify, the court ultimately drew 

“adverse inferences on all points to support a finding of contempt and 

an order to pay compensatory sanctions.” The court explained that “the 

FTC has presented independent evidence to corroborate each of these 

points.” Op. ¶82 [EOR_016].

 4. Contempt Proceedings

In January and March 2013, the FTC filed motions for contempt

against Burke for violating the 1998 Injunction both through a 

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prohibited telemarketing operation and through the sweepstakes 

scheme. EOR_169-630.10 

After a hearing on both motions, see EOR_079-118, the district 

court issued a brief ruling on September 27, 2013, concluding that

Burke and a co-defendant “have violated and are in contempt” of the 

1998 Injunction. EOR_122. It sanctioned Burke $20,174,740.36 for the 

consumer losses caused by the two contumacious schemes. Id. 

Burke appealed that ruling. EOR_119. Before briefing, the FTC

asked this Court to stay the appeal and partially remand to allow the 

agency to seek an indicative ruling from the district court clarifying its 

order. The district court issued a clarification order on July 28, 2014. 

EOR_074-77. The court set forth its findings concerning Burke’s 

“essential role” in the telemarketing scheme, but it did not directly 

address his role in the direct-mail sweepstakes operation. Id. 

 In June 2015, this Court reversed “the portion of the order finding 

Burke in contempt for his participation in the sweepstakes operation 

 

10 The first motion resulted in a temporary restraining order (TRO), the 

appointment of a receiver, and immediate access to Burke’s business 

premises and records. (D.133). Evidence acquired under the TRO then 

revealed the sweepstakes operation.

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and sanctioning him in the amount of $17,389,232,” and remanded the 

case for further proceedings, “so that the district court can provide 

findings that will facilitate reasoned review of its order.” Glen Burke I, 

at 4 (EOR_073).

On remand, the district court issued the decision now on appeal.

EOR_002-019. It reviewed the extensive record anew, EOR_021,11 and 

issued detailed findings and conclusions concerning Burke’s role in the 

direct-mail sweepstakes scheme.12 Relying on the evidence described at 

length above, the district court found that Burke directed and controlled

all aspects of the deceptive sweepstakes operation, from the design and 

content of the mailers, to securing consumer mailing lists, to arranging

receipt mailboxes and payment processors, to the decisions on any prize 

“fulfillment.” Op. ¶¶4-6, 16-23, 25-26, 32-33, 38-47, 50-53 [EOR_003, 

005-012]. 

 

11 On remand, the case was reassigned from Judge Pro, who had retired, 

to Chief Judge Navarro. The district court found there to be no genuine 

disputes over material facts and determined that no hearing was 

necessary. Op. ¶¶90-95 [EOR_018-019].

12 Burke claims that the district court’s findings “are verbatim the 

findings” proposed by the FTC. See Br. 6. This is demonstrably false. 

Compare EOR_002-019 with EOR_046-066.

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The district court also found that the sweepstakes mailers

promised recipients prizes of thousands or millions of dollars in 

exchange for up-front payments. Op. ¶¶7-15, 24, 27-31 [EOR_002-05, 

007-08]. Yet those making the payments received none of the promised 

payouts. Id. ¶¶29-31, 33-37 [EOR_008-09]. Finally, using the 

conservative estimates described above, the court found that Burke’s

scam resulted in consumer losses of at least $17,389,232. Id. ¶¶48-50, 

54-60 [EOR_011-12]. The court found that Burke’s proffered evidence 

did not support his arguments that some consumers received their 

prizes, and that Errol Seales was the operation’s real principal. Id. 

¶¶34-37, 41-47 [EOR_009-011]. 

Based on these findings, the district court concluded that Burke 

“‘made’ the representations to consumers or assisted in” making them; 

that those representations “were ‘material’ because they were both 

expressly made and concerned the very nature of the benefits 

consumers expected to receive”; and that “[i]n reality, no consumer ever 

received the promised payouts.” Op. ¶¶72-75 [EOR_015]. Burke, thus, 

“made misrepresentations material to consumers’ decisions to purchase 

services, in violation of the [1998 Injunction].” Id. ¶76 [EOR_015]. The 

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court noted that Burke would be liable even if his assertion about 

Seales’s ownership of the operation were true, because “the evidence 

shows Burke played a crucial role in the key aspects of the sweepstakes 

operation,” and “[a]t the very least, then, he ‘assisted another’ to make 

these misrepresentations, which was sufficient to violate the [1998 

Injunction].” Id. ¶77; see id. ¶¶78-79 [EOR_015-16]. 

 The court concluded that “consumer loss” is an appropriate 

measure of sanctions, because “Burke’s profits from the scheme * * * 

would not constitute a full compensatory remedy,” and at any rate “the 

FTC has demonstrated that it would have a difficult time proving 

Burke’s net gain, especially given his noncooperation.” Op. ¶¶84-87 

[EOR_017-18]. Finding no “value” in the sweepstakes booklets or de 

minimis checks sent to some consumers, it held that “Burke is liable for 

$17,389,232 in compensatory sanctions related to the direct-mail 

sweepstakes operation.” Id. ¶¶88-89 [EOR_018]. 

STANDARD OF REVIEW

This Court reviews district court orders of civil contempt, 

including decisions to impose sanctions, for abuse of discretion. See, e.g.,

FTC v. EDebitPay, LLC, 695 F.3d 938, 943 (9th Cir. 2012); FTC v. 

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Affordable Media, LLC, 179 F.3d 1228, 1239 (9th Cir. 1999). The 

district court abuses its discretion only if it commits legal error or 

makes clearly erroneous factual findings. EDebitPay, 695 F.3d at 943; 

Affordable Media, 179 F.3d at 1239; see also United States v. Bright, 

596 F.3d 683, 694 (9th Cir. 2010); Irwin v. Mascott, 370 F.3d 924, 931 

(9th Cir. 2004).

SUMMARY OF ARGUMENT

The district court correctly held that Burke’s direct-mail 

sweepstakes scheme violated the 1998 Injunction, and it rightly 

sanctioned him for the resulting millions of dollars in consumer loss. 

Burke has not nearly met his burden to show an abuse of discretion in 

the court’s contempt judgment. 

The 1998 Injunction expressly prohibited Burke from 

misrepresenting “in any manner” “any fact material to a consumer’s 

decision to purchase any item, product, good, service, or investment.”

Burke’s deceptive direct-mail scheme fell squarely within the 

Injunction’s prohibitive scope. 

Overwhelming and uncontroverted record evidence—mostly 

documents from Burke’s own files—demonstrates that he was the 

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driving force behind the direct-mail sweepstakes scheme. He recruited, 

coordinated with, and directed the copywriters and designers of the 

deceptive mailers; he purchased consumer mailing lists; and he directed 

the worldwide mailboxes and financial network for receiving and 

processing consumer payments.

Burke fails to seriously confront any of this evidence. He contends 

that he personally neither designed nor mailed the solicitations, but 

even if that claim could be squared with the record, it would not help 

him. The Injunction barred Burke from “[a]ssisting others in violating” 

its strictures—and his brief admits outright that he “acted as a 

consultant” to the scheme, whether or not he personally designed or 

mailed the flyers. Br. 7. More fundamentally, however, Burke fails 

entirely to come to grips with the exhaustive evidence, including 

adverse inferences drawn from his invocation of the Fifth Amendment,

showing that he in fact directed the operation, whether or not he 

personally put the misleading solicitation in the mailbox. 

Burke also asserts that the district court did not consider the 

contrary evidence that he proffered, but in its opinion the court directly 

considered that evidence and found it insufficient to support his 

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arguments. Lastly, Burke claims (belatedly) that admissions made by 

his counsel on his behalf cannot be attributed to him. But he provides 

no basis to believe that the admissions were unauthorized, and at any 

rate those admissions were a fraction of the evidence showing Burke’s 

liability.

Burke claims in passing that he did not violate the injunction 

because the mailers did not induce consumers to purchase anything. 

Burke has waived the argument by failing to raise it sufficiently. But it 

is wrong anyway because the injunction applies to “the advertising, 

promotion, offer for sale, or sale of any item, product, good, service, or 

investment interest of any kind” and prohibits misrepresenting “any 

fact material to a consumer’s decision to purchase any item, product, 

good, service, or investment.” That language plainly applies to a 

consumer’s decision to pay money to receive a payout.

The FTC was not required to bring this case as a new action 

against Burke and additional defendants. The law requires no such 

thing, and even if Burke were held jointly and severally liable with 

others, he would still face the same ultimate monetary sanction. 

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ARGUMENT

I. THE EVIDENCE FULLY SUPPORTS THE DISTRICT COURT’S 

DECISION TO HOLD BURKE IN CONTEMPT FOR VIOLATING THE 

1998 INJUNCTION

The 1998 Injunction expressly barred Burke from 

“[m]isrepresenting, in any manner, directly or by implication, or failing 

to disclose any fact material to a consumer’s decision to purchase any 

item, product, good, service, or investment,” and from “[a]ssisting others 

in” carrying out any such misrepresentation or omission. EOR_126-27; 

see supra at 6-7. Burke acknowledges that the Injunction “makes it 

clear that Mr. Burke is prohibited from * * * acting in a deceptive 

manner.” Br. 14; accord Br. 11-12. The overwhelming and 

uncontroverted evidence of Burke’s conduct set forth above amply 

supports the district court’s determination that Burke violated the 

injunction. Burke did not “contest[] the validity or admissibility of any 

of th[at] evidence” below, Op. ¶93 [EOR_019], and he presents no good 

challenge to it now. 

Burke’s principal claim is that “he was not engaged in the creation 

or direction of sending the mailers” that induced consumers to send 

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money. Br. 15. The argument is legally irrelevant and factually 

baseless. 

It is legally irrelevant because the 1998 Injunction prohibited 

Burke not only from engaging in, but also from “[a]ssisting others in,” 

deceptive schemes. See supra at 6. Burke plainly violated this latter 

prohibition, even if he did not personally create or send the deceptive 

mailers.13 The district court held explicitly that “[a]t the very least” 

Burke “‘assisted another’ to make these misrepresentations, which was 

sufficient to violate” the Injunction. Op. ¶77 [EOR_015-16]. He directly 

admits as much at page 7 of his brief, which states that he “argued and 

submitted evidence to support that he acted as a consultant in the mail 

sweepstakes.” This Court need not proceed further to reject his claims.

Burke’s claim also runs headlong into overwhelming record 

evidence showing that “Burke played a crucial role in the key aspects of 

the sweepstakes operation.” Op. ¶77 [EOR_015]. He was deeply 

involved at every stage of the scam: recruiting, collaborating with, and 

 

13 In arguing that he “did not engage in any activity that violated his 

Permanent Injunction,” Burke quotes the provisions of the 1998 

Injunction prohibiting him from engaging in telemarketing activity. Br. 

15. He ignores the part of the injunction pertinent here.

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supervising the copywriters, designers, list brokers, and “fronts;” 

selecting the mailers’ text and design; acquiring consumer lists; and 

arranging mailboxes to receive payments. He also had the ultimate 

approval authority on these decisions. See supra at 8-9, 12-16. 

The uncontroverted record evidence also shows that Burke himself 

commissioned, reviewed, and approved the deceptive sweepstakes

mailers. He routinely communicated with copywriters and artists about 

the content and design of the mailers, see, e.g., PX22 Att. M at 32-34, 

35-36, 37-42 [EOR_409-419]; acquired consumer mailing lists from list 

brokers, and directed the mailing of his sweepstakes solicitations to 

those consumers. PX22 Att. M at 49-53 [EOR_426-430]; PX31 Att. C at 

40-58, Att. G [SER_181-199, 214-222]. He was at the heart of the entire 

scheme. See Op. ¶¶17-20 [EOR_005-06]. Indeed, Burke forcefully 

instructed Seales, the nominal leader of the business, that he and not 

Seales was in charge of the operation. See PX22 Att. M at 56-57 

[EOR_433-34].

Burke cannot escape the force of the evidence with his claim that 

the district court erroneously ignored his proffered evidence and relied 

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on unspecified “admissions” that “cannot be attributed directly” to him. 

Br. 10, 16. Both claims founder on the record. 

 The district court in fact considered Burke’s proffered evidence, 

but found it unconvincing. See, e.g., Op. ¶¶34-37, 41-47, 77-79 

[EOR_009-011, 015-16]. And for good reason: Burke’s “evidence” was 

unsupported and conclusory. He relied principally on a declaration from 

Seales, who claimed—without any support or explanation for the huge 

amount of contrary evidence—that Burke had no responsibility for the 

scheme. See EOR_663-65. But this Court has established that a 

“conclusory, self-serving affidavit, lacking detailed facts and any 

supporting evidence, is insufficient to create a genuine issue of material 

fact.” FTC v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 

1997). That is particularly true when an unsupported affidavit runs 

counter to overwhelming contrary evidence. See Soremekun v. Thrifty 

Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).

Far from exonerating Burke, the Seales declaration directly 

supports the finding of contempt. As explained above, the injunction 

prohibited assisting misleading schemes, and the declaration attests 

that Burke provided assistance by “do[ing] some consulting” concerning 

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the development of the sweepstakes mailers, “utiliz[ing] his American 

Express card as well as various business accounts to make sure any 

vendors, printers, lead developers, or any other employees in the United 

States would be paid,” and “monitor[ing] the [check processor] 

accounts.” EOR_663-64. Similarly, the other witness on whom Burke 

relied, Lindsay Reid, testified at deposition that she mailed the

sweepstakes prize checks to consumers, but “she only sent consumers 

money on Burke’s orders and with his funds.” Op. 32 [EOR_008]; PX28, 

at 87-88 [SER_040-41]. 

Burke also argues that the district court improperly relied on his 

admissions. The exact argument is unclear, for Burke fails to specify 

what admissions he refers to or where the district court relied on them.

But he contends both that statements made by his attorney cannot be 

held against him, and that the district court wrongly relied on adverse 

inferences drawn from his invocations of a Fifth Amendment privilege.

Br. 16. Both claims are meritless.

To begin with, Burke raised no claim below that the court could 

not rely on admissions made in his pleadings and he may not do so now 

(indeed, he is represented by the same lawyer). An issue “will generally 

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be deemed waived on appeal if the argument was not raised sufficiently 

for the trial court to rule on it.” Armstrong v. Brown, 768 F.3d 975, 981 

(9th Cir. 2014) (internal quotation marks and citations omitted). 

Even if the claim is not waived, it is wrong. It makes no difference 

that admissions in Burke’s filed pleadings and proffered evidence were 

“statements from his legal counsel.” Br. 16. “Any other notion would be 

wholly inconsistent with our system of representative litigation, in 

which each party is deemed bound by the acts of his lawyer-agent and is 

considered to have notice of all facts, notice of which can be charged 

upon the attorney.” Link v. Wabash R.R. Co., 370 U.S. 626, 634 (1962)

(internal quotation marks and citations omitted).14 Burke provides no 

legal or factual reason why this general rule should not apply here; 

indeed, he does not claim that statements in his pleadings were 

 

14 “It is well settled that short of a compromise of a client’s claim or a 

confession of judgment the authority of counsel in a case extends 

generally to all the customary incidents of litigation and embraces all 

agreements, stipulations, and admissions appertaining to its conduct 

through the courts.” Christy v. Atchison, T. & S.F. Ry. Co., 233 F. 255, 

256-257 (8th Cir. 1916). See also Moore v. Allied Chem. Corp., 480 F. 

Supp. 377, 383 (E.D. Va. 1979) (counsel “may make admissions of or 

stipulations as to facts, the effect of which is to dispense with proof of 

such facts.”) (quoting Harris v. Diamond Constr. Co., 36 S.E.2d 573, 578 

(Va. 1946)).

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unauthorized, and in his own brief, Burke continues to rely on the very

documents he faults the court for relying on. See Br. 10; Op. ¶¶34-37, 

41-47 [EOR_009-011]. Burke “voluntarily chose this attorney as his 

representative in the action, and he cannot now avoid the consequences 

of the acts or omissions of this freely selected agent.” Link, 370 U.S. at

633-34. 

The district court also properly drew adverse inferences from 

Burke’s refusal on Fifth Amendment grounds to respond to deposition 

questions posed by FTC counsel. A defendant may not invoke his 

privilege as both a shield, to protect against self-incrimination, and a 

sword, to defeat the FTC’s case. United States v. $133,420.00 in U.S. 

Currency, 672 F.3d 629, 640 (9th Cir. 2012). To protect against that 

heads I win, tails you lose approach, “the district court has discretion to 

draw an adverse inference” from a defendant’s assertion of the Fifth 

Amendment in a civil case. Nationwide Life Ins. Co. v. Richards, 541 

F.3d 903, 911-12 (9th Cir. 2008).

Even if this Court were to disregard the district court’s adverse 

inferences, the direct evidence summarized above, supra at 7-17, was 

itself more than enough to establish Burke’s liability. The district court 

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recognized as much when it ruled that “the FTC has presented 

independent evidence to corroborate each of [its] points” on contempt. 

Op. ¶82 [EOR_016].15

Finally, Burke argues that the FTC did not show that he violated 

the 1998 Injunction, because it did not prove that Burke “attempted to 

induce the consumer to purchase anything.” Br. 14-15. The contention is 

both waived and wrong.

It is waived because Burke raises the issue only by passing 

cursory mention in two sentences of his brief. “Generally, an issue is 

waived when the appellant does not specifically and distinctly argue the 

issue in his or her opening brief.” United States v. Kama, 394 F.3d 1236, 

1238 (9th Cir. 2005) (emphasis added).

If the Court considers the argument, it is meritless. “In construing 

consent decrees like the one at issue here, ‘courts use contract 

principles’.” EDebitPay, 695 F.3d at 943 (quoting Thompson v. Enomoto, 

915 F.2d 1383, 1388 (9th Cir. 1990)). The 1998 Injunction stated that it 

 

15 At the very end of his brief, Burke contends that the district court 

erroneously failed to “set forth any Findings of Fact related to the mail 

fraud/sweepstakes scheme.” Br. 18. That contention is plainly 

inaccurate and appears to be left over from Burke’s brief in the first 

appeal of this case. 

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applied to “any item, product, good, service, or investment interest of 

any kind” and prohibited misrepresentations “material to a consumer’s 

decision to purchase any item, product, good, service, or investment.” 

EOR_127. That broad language covers essentially any quid-pro-quo

arrangement where consumers exchange money for some benefit.

The evidence showed that Burke’s mailers were designed to—and 

did—induce consumers to pay $20-30 in return for what consumers 

were led to believe were guaranteed payouts. The payment of money up 

front in exchange for the promised payout plainly constitutes the 

purchase of an “item, product, good, service, or investment.” EOR_127, 

¶II.B. This link between the payment of fees and receiving the cash 

prizes is evident on the face of these mailers. See, e.g., PX22 Att. D at 68 

[EOR_309] (“Include the $26.59 Transfer Fee for processing this 

$532,500.00 Stimulus Rebate Benefit into your name”); id. at 70 

[EOR_311] (“You must mail the form below with your processing fee [of 

“$27.95”] in order to process your application * * * CONFIRMED 

WINNER CLAIM * * * Maximum Prize: $458,389.00”); see also supra at 

7-8. Consumers receiving these mailers were expressly instructed to 

send back their money in order to claim a very large cash payout. And 

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Burke himself was well aware of this quid pro quo: When some 

consumers initially did not send him their payments, he authorized 

other mailers, like the Winner’s Satisfaction Survey and Trouble Ticket, 

designed to get them to change their mind. See, e.g., PX22 Att. M at 46-

48 [EOR_423-25] (copywriter sending Burke new text for the “Trouble 

Ticket” mailer that “should cut WAY down on no pays.”).16

II. THE FTC WAS NOT REQUIRED TO BRING A NEW CASE AGAINST 

BURKE

The district court’s order to pay $17,389,232 in contempt sanctions 

was fully supported by the record and well within the court’s discretion.

“District courts have broad equitable power to order appropriate relief 

in civil contempt proceedings.” EDebitPay, 695 F.3d at 945 (quoting 

SEC v. Hickey, 322 F.3d 1123, 1128 (9th Cir. 2003)). Such relief can 

properly include using “consumer loss to calculate sanctions for civil 

 

16 Burke does not challenge the materiality of these misrepresentations, 

but they plainly were material to consumers’ decisions to send money to 

him—there was no other reason for them to have done so. A 

representation is material if it “involves information that is important 

to consumers” and is therefore “likely to affect their * * * conduct.” FTC 

v. Cyberspace.com, LLC, 453 F.3d 1196, 1201 (9th Cir. 2006) (quoting 

Cliffdale Assocs., Inc., 103 F.T.C. 110, 165 (1984)). See Op. ¶73 (Burke’s 

misrepresentations “were ‘material’ because they were both expressly 

made and concerned the very nature of the benefits consumers expected 

to receive”). [EOR_015].

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contempt of an FTC consent order.” Id. (citing FTC v. Kuykendall, 371 

F.3d 745, 764 (10th Cir. 2004) (en banc); FTC v. Trudeau, 579 F.3d 754, 

771 (7th Cir. 2009); McGregor v. Chierico, 206 F.3d 1378, 1387-88 (11th 

Cir. 2000)).

As detailed above (supra at 15-17, 22), the court used the FTC’s 

conservative calculation of the harm Burke caused consumers as a 

measure of contempt sanctions. The FTC’s figure rested on Burke’s own 

records of consumer payments to calculate consumer loss. Burke offered 

no alternative measure or means of measurement. 

Burke raises a single objection to the court’s sanctions ruling: he 

claims that the FTC could not simply ask for contempt sanctions 

against him, but was required to bring a new case against him and the 

persons he worked with on his sweepstakes scheme. “[H]ad the 

Commission initiated a new action against all the purported 

participants in the mail fraud/sweepstakes scheme,” he claims, “a 

finding of joint and several liability would have been appropriate.” Br. 

18.

This argument is spurious. The FTC’s decision to proceed against 

Burke for contempt, rather than initiating a new case against him and 

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the other participants in the deceptive scheme, was well within its 

prosecutorial discretion. See Heckler v. Cheney, 470 U.S. 821, 831 (1985) 

(a decision not to prosecute or enforce a law is “generally committed to 

an agency’s absolute discretion”); Alaska Fish & Wildlife Fed’n and 

Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 938 (9th Cir. 1987) 

(same). As long as Burke was in contempt of the 1998 Injunction, the 

FTC could proceed against him for that violation, whether or not others 

also may have been involved in his misdeeds. Burke cites no law to the 

contrary. Nor does he explain what practical relief he would get from a 

different prosecutorial decision. His preferred action for joint and 

several liability would leave him liable to the same degree he is now. 

CONCLUSION

For the foregoing reasons, the district court’s order should be 

affirmed. 

STATEMENT OF RELATED CASES

Pursuant to Circuit Rule 28-2.6, Federal Trade Commission v. 

Glen Burke, Appeal No. 13-17448 (9th Cir.), is related as a prior appeal

heard by this Court in the case being briefed. No other cases in this 

Court are deemed related to this appeal.

 Case: 16-15859, 12/01/2016, ID: 10217492, DktEntry: 23, Page 42 of 45
38

JESSICA RICH

 Director 

SARAH WALDROP

REENAH L. KIM

Attorneys

BUREAU OF CONSUMER 

PROTECTION

December 1, 2016

Respectfully submitted,

DAVID C. SHONKA

Acting General Counsel

JOEL MARCUS

Deputy General Counsel

/s/ Imad Abyad 

IMAD D. ABYAD

Attorney

FEDERAL TRADE COMMISSION

600 Pennsylvania Ave., N.W.

Washington, DC 20580

(202) 326-3579

iabyad@ftc.gov

 Case: 16-15859, 12/01/2016, ID: 10217492, DktEntry: 23, Page 43 of 45
CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume 

limitations of Fed. R. App. P. 32(a)(7)(B)(i), in that it contains 7,337

words, excluding the parts exempted by Fed. R. App. P. 32(a)(7)(B)(iii), 

and using the Microsoft Word word-processing system.

/s/ Imad Abyad

IMAD D. ABYAD

Attorney

FEDERAL TRADE COMMISSION

 Case: 16-15859, 12/01/2016, ID: 10217492, DktEntry: 23, Page 44 of 45
CERTIFICATE OF SERVICE

I hereby certify that on December 1, 2016, I electronically filed the 

foregoing “Answering Brief for the Federal Trade Commission” and 

“Supplemental Excerpts of Record” with the Clerk of the Court for the 

United States Court of Appeals for the Ninth Circuit by using the 

appellate CM/ECF system. I certify that all participants in the case are 

registered CM/ECF users, and thus service will be accomplished by the 

appellate CM/ECF system.

/s/ Imad Abyad

IMAD D. ABYAD

 Case: 16-15859, 12/01/2016, ID: 10217492, DktEntry: 23, Page 45 of 45