Case: 19-10840 Date Filed: 03/27/2019 Page: 1 of 19 

No. 19-10840-AA

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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FEDERAL TRADE COMMISSION,

Plaintiff-Appellee,

v. 

STEVEN J. DORFMAN, 

Defendant-Appellant. 

–––––––––––––––––––––––––––––––––––––––––––––

On Appeal from the United States District Court

for the Southern District of Florida

0:18-cv-62593-DPG (Hon. Darrin P. Gayles)

–––––––––––––––––––––––––––––––––––––––––––––

Response of the Federal Trade Commission to

Jurisdictional Question

–––––––––––––––––––––––––––––––––––––––––––––

Of Counsel:

ELIZABETH C. SCOTT

JAMES H. DAVIS

JOANNIE WEI 

Attorneys

FEDERAL TRADE COMMISSION

Chicago, Illinois 60604

ALDEN F. ABBOTT

General Counsel

JOEL MARCUS

Deputy General Counsel

BRADLEY DAX GROSSMAN

Attorney

FEDERAL TRADE COMMISSION

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

bgrossman@ftc.gov

202-326-2994
No. 19-10840-AA (11th Cir.) 

Federal Trade Commission v. Steven J. Dorfman 

C1 of 2

Eleventh Circuit Rule 26.1 Certificate of Interested Persons

Akerman LLC – Receiver/Counsel for Receiver

Crespo, Janelly – Counsel for Defendant-Appellant 

Davis, James – FTC Attorney

DLA Piper LLP – Counsel for Defendant-Appellant 

Dorfman, Steven – Defendant-Appellant

Federal Trade Commission – Plaintiff-Appellee 

Gayles, The Hon. Darrin P.

Gershoni, Elan – Counsel for Defendant-Appellant

Goldberg, Michael – Receiver

Grossman, Bradley – FTC Attorney

Health Benefits One LLC – Defendant 

Health Center Management LLC – Defendant 

Innovative Customer Care LLC – Defendant 

Levit, Joan – Counsel for Receiver 

Marcus, Joel – FTC Attorney

O’Quinn, Ryan – Counsel for Defendant-Appellant

Peoples, Gera – Counsel for Receiver

Scott, Elizabeth – FTC Attorney

Senior Benefits One LLC – Defendant 

Case: 19-10840 Date Filed: 03/27/2019 Page: 2 of 19 
No. 19-10840-AA (11th Cir.) 

Federal Trade Commission v. Steven J. Dorfman 

C2 of 2

Simple Health Plans LLC – Defendant 

Simple Insurance Leads LLC – Defendant 

Surgeon, Naim – Counsel for Receiver

Ward, Guy – FTC Attorney

Wei, Joannie – FTC Attorney

The Federal Trade Commission further states that, to the best of its 

knowledge, no publicly traded company or corporation has an interest in the 

outcome of this case or appeal. 

Case: 19-10840 Date Filed: 03/27/2019 Page: 3 of 19 
RESPONSE TO JURISDICTIONAL QUESTION

Steven J. Dorfman appeals the district court’s October 2018 entry of a 

temporary restraining order and its February 2019 order refusing to strike the TRO. 

D.E. 85 (Notice of Appeal). The Court has inquired whether it has appellate 

jurisdiction over those two actions. The answer is no, and the Court therefore 

should dismiss this appeal. 

The Court’s Jurisdictional Question asks: “To the extent the ... TRO ... can 

be construed as a preliminary injunction, address whether the instant notice of 

appeal is timely to challenge that order, in addition to the ... order denying the 

motion to strike the TRO.” If the Court’s jurisdiction turned simply on timing, the 

appeal might be proper. More fundamentally, however, the TRO may not properly 

be construed as a preliminary injunction, and as a result neither the TRO nor the 

order denying the motion to strike the TRO is even an appealable order. In 

addition, because Dorfman has asserted no injury redressable by appeal, he lacks 

standing.

Congress has granted the courts of appeals jurisdiction over district court 

orders “granting ... injunctions” or “refusing to dissolve or modify injunctions.” 

28 U.S.C. § 1292(a)(1). But a temporary restraining order is not an “injunction” 

within the meaning of the statute, and orders pertaining to TROs thus are generally

“not appealable ... as orders respecting injunctions.” 16 Wright & Miller, Federal 

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Practice & Procedure § 3922.1 (3d ed. 2018); accord Fernandez-Roque v. Smith, 

671 F.2d 426, 429 (11th Cir. 1982). Therefore, unless the TRO in this case can be 

interpreted as a preliminary injunction, neither it nor orders pertaining to it are 

subject to appeal. 

Although a TRO can sometimes be deemed a preliminary injunction if it 

extends beyond 14 days, it remains unappealable when the “adverse party consents 

to a[n] ... extension.” Fed. R. Civ. P. 65(b)(2). Here, the district court has 

extended the TRO on several occasions, but Dorfman consented to or affirmatively 

requested each of those extensions. He tried to deny that below and continues to 

do so now, but as the district court determined, “any reasonable review of this 

record indicates that [Dorfman] consented to the extension.” 2/22/19 Hearing Tr.

(FTC Exh. 15) at 29. As a result, Dorfman may not appeal either the original 

issuance of the TRO or the district court’s decision not to dissolve it, since it was 

“issued or extended with the consent of all parties.” Fernandez-Roque, 671 F.2d at

430. 

The district court has scheduled a preliminary injunction hearing for April 

16, a date specifically requested by Dorfman. Once the court has ruled on the 

preliminary injunction, Dorfman may file a proper appeal (if necessary) on a fully 

developed record. In the meantime, this Court should dismiss the pending appeal 

for lack of jurisdiction.

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BACKGROUND

A. Charges Against Dorfman

The FTC’s complaint charges Dorfman and his businesses1 with selling 

essentially worthless products based on false promises that they were 

comprehensive, ACA-compliant insurance policies that would cover pre-existing 

conditions for only a nominal co-pay. D.E. 1.

2

 The complaint alleges that these 

actions violated Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), which prohibits 

unfair and deceptive acts or practices, and Section 310.3 of the FTC’s 

Telemarketing Sales Rule, 16 C.F.R. 310.3(a)(2)(iii), (a)(2)(vii), & (a)(4), which 

prohibits deceptive telemarketing practices. 

Upon filing its complaint, the FTC moved ex parte for a TRO with an asset 

freeze, temporary receivership, and an order to show cause why a preliminary 

injunction should not issue. D.E. 3. On October 31, 2018, the district court issued 

the TRO and set a November 14 hearing date on the FTC’s motion for a 

preliminary injunction. D.E. 15.

B. Dorfman’s Three Requests To Extend The TRO

One week after the district court entered the TRO, it granted the parties’ 

joint motion to continue the preliminary injunction hearing until December 6 and 

 

1 The corporate defendants have neither appeared nor responded in this case and 

are not parties to this appeal.

2 A copy of the district court docket sheet is attached hereto as FTC Exhibit 1. 

Case: 19-10840 Date Filed: 03/27/2019 Page: 6 of 19 
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“extend[] the TRO until the Court rules on whether a preliminary injunction should 

be entered in this matter.” D.E. 17 (FTC Exh. 2); D.E. 18. 

Eight days after the first continuance, Dorfman’s counsel told FTC counsel 

that he planned to seek a second continuance. He added, “Of course, an extension 

of the PI hearing date would contemplate and [sic] extension of the TRO.” D.E. 

44-3 (FTC Exh. 4) at 3. The parties then jointly moved to postpone the hearing 

until at least January 22 and leave the TRO in place until the court’s ultimate

ruling. D.E. 27 (FTC Exh. 3). The court granted the motion and set a January 29 

hearing date. D.E. 30 (Dorfman Exh. A at 5). 

 Dorfman later sought and received yet a third continuance of the preliminary 

injunction hearing, this time over the FTC’s opposition. Citing an ongoing

privilege dispute,

3

 Dorfman asked the court to defer the preliminary injunction 

hearing until an indeterminate time “twenty-eight (28) days after the FTC produces 

the Required Production,” and he attached a proposed order with a hearing date of 

February 26 at the earliest. D.E. 50 (FTC Exh. 5) at 5; D.E. 50-1 (FTC Exh. 6) at 

5. Dorfman’s proposed order again stipulated that “[a]ll other terms of the TRO 

remain in full force and effect pending the Court’s determination as to whether a 

 

3 The dispute centered on whether the FTC had to produce the undercover 

identities that its agents used when making undercover purchases. The FTC 

claimed those identities were subject to the law enforcement privilege because the 

agency used the same identities in other investigations. 

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preliminary injunction should be entered in this matter.” D.E. 50-1 (FTC Exh. 6) 

at 5. 

The FTC opposed Dorfman’s third extension request because he had failed 

to “justif[y] indefinitely delaying the preliminary injunction ... hearing ... which 

the Court already has extended twice.” D.E. 52 (FTC Exh. 7) at 1. The FTC 

explained that it had long offered to produce the privileged material to Dorfman’s 

counsel subject to a protective order and “Attorneys’ Eyes Only” restriction, but 

that counsel had not responded to the offer for weeks. Id. at 1-6. 

The district court nonetheless found “good cause” to grant Dorfman’s 

request to “continue the Preliminary Injunction Hearing and extend the Temporary 

Restraining Order” in light of the discovery dispute. D.E. 55. The court indicated 

that it would set a new hearing date at a mid-January status conference. Id. 

C. The Government Shutdown And Dorfman’s Agreement To An April 16 

Hearing Date

On December 31, 2018, the FTC sought, and the district court granted, a 

temporary stay of proceedings in the case due to the government shutdown and 

furlough of FTC staff. D.E. 58 (Dorfman Exh. A at 8); D.E. 59. One week later, 

despite having asked for an extension of the TRO and a late-February preliminary 

injunction hearing, Dorfman asked the court to reconsider the stay and either “(i) 

dissolv[e] the TRO and Asset Freeze; or, in the alternative (ii) order[] the FTC to 

produce [additional documents] forthwith and set[] a briefing deadline and hearing 

Case: 19-10840 Date Filed: 03/27/2019 Page: 8 of 19 
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on the FTC’s request for a preliminary injunction.” D.E. 60 at 5 (Dorfman Exh. A 

at 34). In response, the district court partially lifted the stay “for the limited 

purposes of allowing discovery to proceed, and to promptly resolve discovery 

disputes.” D.E. 64 (FTC Exh. 9).4

 On January 29, the court vacated the remaining 

stay because the shutdown had ended. D.E. 68. 

On February 5, the court directed the parties to propose dates for the 

preliminary injunction hearing. D.E. 71. Three days later, Dorfman requested a 

hearing on April 16 (the FTC independently asked for the same date). D.E. 74

(FTC Exh. 10); D.E. 75 (FTC Exh. 11). Dorfman’s counsel emailed chambers 

verifying that the April 16 hearing date “works for Mr. Dorfman” and would 

“provide both parties sufficient time to prepare for the hearing.” D.E. 96-1 at 1

(FTC Exh. 14). The court adopted that recommendation and extended the TRO 

until the hearing date. D.E. 76 (FTC Exh. 12). 

D. Dorfman’s Motion To Strike The TRO 

Eleven days after he affirmatively asked the district court to set the 

preliminary injunction hearing for April 16, Dorfman abruptly changed course and

demanded that the court immediately strike the TRO because the court had taken 

too long to conduct the hearing. D.E. 79 (FTC Exh. 13). Dorfman contended that 

 

4 On February 6, the magistrate judge resolved the privilege dispute in 

Dorfman’s favor by ordering the FTC to produce its investigators’ undercover 

identities without restriction. D.E. 72. 

Case: 19-10840 Date Filed: 03/27/2019 Page: 9 of 19 
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the TRO had “expired by operation of law” because he had only consented to an 

extension through January 29. Id. at 6, 8, 25. He complained that “[e]ven to the 

extent there was an unforeseen government furlough, the hearing could still have 

been held on January 29.” Id. at 25.

 Dorfman failed to mention that it was he who asked the district court—over 

the FTC’s objection—to indefinitely postpone the January 29 hearing and to 

extend the TRO until after the rescheduled hearing date. See supra pp. 4-5. 

Dorfman also failed to mention that he had requested the April 16 hearing date

eleven days earlier. See supra p. 6. 

At a February 22 hearing, the district court denied Dorfman’s motion to 

strike the TRO. 2/22/19 Hearing Tr. (FTC Exh. 15) at 28. The court explained 

that “any reasonable review of this record indicates that the defendant consented to 

the extension.” Id. at 29. Nevertheless, the court advised Dorfman’s counsel that 

“if you want an earlier date, you are being afforded that opportunity.” Id. at 34. 

 Dorfman never sought an earlier hearing date. Instead, he filed the notice of 

appeal from the TRO and the district court’s order refusing to strike it. D.E. 85.

E. Dorfman’s Answer To Jurisdictional Question

On March 22, 2019, Dorfman responded to this Court’s Jurisdictional 

Question by maintaining—as he did before the district court—that his “consent” to 

the TRO “ended ... on January 29.” Dorfman’s Answer to Jurisdictional Question 

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at 1. Dorfman again neglected to disclose that he had successfully moved the 

district court to postpone the January 29 preliminary injunction hearing and extend 

the TRO until the court reached its ultimate decision on the injunction.

DISCUSSION

I. BECAUSE DORFMAN CONSENTED TO THE TRO,IT IS NOT 

APPEALABLE

This Court lacks jurisdiction over the TRO and the district court’s order 

refusing to strike it. Under 28 U.S.C. § 1292(a)(1), this Court has jurisdiction over 

“injunctions” and orders “refusing to dissolve or modify injunctions.” But the 

general rule is that a TRO is not an appealable “injunction” for purposes of Section 

1292. 16 Wright & Miller § 3922.1; Fernandez-Roque, 671 F.2d at 429. This 

Court can treat a TRO that extends beyond 14 days as an appealable preliminary 

injunction in some circumstances, Fernandez-Roque, 671 F.2d at 429, but a TRO 

does not become a preliminary injunction when the “adverse party consents to ... 

[an] extension,” Fed. R. Civ. P. 65(b)(2). A TRO “extended with the consent of all 

parties remains a nonappealable order.” Fernandez-Roque, 671 F.2d at 430; see 

Chicago United Indus., Ltd. v. City of Chicago, 445 F.3d 940, 943 (7th Cir. 2006). 

As the district court determined after reviewing the procedural history of this 

case, “any reasonable review of this record indicates that the defendant consented 

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to the extension.” 2/22/19 Hearing Tr. (FTC Exh. 15) at 29.5

 He agreed three 

separate times to keep the TRO in place until the district court decided “whether a 

preliminary injunction should be entered in this matter.”6

 D.E. 17 (FTC Exh. 2); 

D.E. 27 (FTC Exh. 3); D.E. 50-1 (FTC Exh. 6) at 5. Then, he affirmatively—and 

over the FTC’s objection—sought to postpone the hearing indefinitely beyond 

January 29 (D.E. 50 (FTC Exh. 5) at 5; D.E. 55), and eventually asked for a 

hearing on April 16 (D.E. 75 (FTC Exh. 11)). 

Dorfman claimed below that his consent to the TRO expired during the 

government shutdown (D.E. 79 (FTC Exh. 13) at 25), but the district court 

properly rejected that theory, which cannot be squared with the record. Before the 

shutdown, Dorfman had already asked the court to postpone the hearing date until 

at least February 26 and agreed to the TRO’s remaining in force until the ultimate 

decision on the injunction. D.E. 50 (FTC Exh. 5) at 5; D.E. 50-1 (FTC Exh. 6) at 

 

5 This Court “review[s] factual findings related to jurisdiction for clear error.” 

United States v. Wilchcombe, 838 F.3d 1179, 1186 (11th Cir. 2016). 

6 Dorfman’s unqualified consent distinguishes this case from AT&T Broadband 

v. Tech Communications, Inc., 381 F.3d 1309 (11th Cir. 2004), in which a 

defendant consented to the continuation of an asset freeze with a “stipulation that 

he could challenge its imposition at a later date.” Id. at 1313. Here, Dorfman 

consented to the TRO without any qualification. 

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5.7

 The shutdown ended four weeks before Dorfman’s proposed February 26 

hearing date. D.E 68. But when the district court asked the parties to propose 

hearing dates after the shutdown, Dorfman chose not to renew his request for a 

February 26 hearing, but instead requested April 16. D.E. 75 (FTC Exh. 11). 

Dorfman thus not only consented to the TRO during the shutdown, but for several 

months thereafter. 

Dorfman also argued below that if the TRO did not expire during the 

shutdown, it expired on January 29, and he maintained that “the hearing could still 

have been held on January 29.” D.E. 79 (FTC Exh. 13) at 25. He repeats the same 

claim in his answer to this Court’s Jurisdictional Question (at p. 1). But Dorfman 

asked, over the FTC’s objection, to extend the hearing date and TRO beyond

January 29. D.E. 50 (FTC Exh. 5) at 5; D.E. 50-1 (FTC Exh. 6) at 5; D.E. 55. 

Before he filed that motion, Dorfman’s counsel told the FTC that “[w]e would 

obviously be willing to extend the TRO” if the court postponed the January 29 

hearing. D.E. 57-1 (FTC Exh. 8) at 4. 

Even if it were possible to conclude from that record that Dorfman withdrew 

his consent to the TRO, he should be judicially estopped from claiming as much. 

 

7 In his answer to this Court’s Jurisdictional Question (at p. 2), Dorfman suggests

that the government shutdown caused the “cancellation of the January 29 hearing.” 

In fact, Dorfman’s own motion prompted the district court to cancel the January 29 

hearing, ten days before the shutdown. See D.E. 55. 

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“[W]here a party assumes a certain position in a legal proceeding, and succeeds in 

maintaining that position, he may not thereafter, simply because his interests have 

changed, assume a contrary position.” New Hampshire v. Maine, 532 U.S. 742, 

749 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689 (1895)). That is exactly 

what Dorfman is trying to do now. He asked the district court to delay the 

preliminary injunction hearing from November until the following April, and 

having convinced it to do so, he now has turned about-face and complains that he 

can appeal the TRO because it extended too long. His position is sandbagging, 

plain and simple. Having induced the court to postpone the preliminary injunction 

hearing by consenting to the TRO, Dorfman may not now retract that consent 

simply because he has changed his mind. 

In deciding whether a party is judicially estopped from making an argument, 

this Court considers whether the party (1) has taken clearly inconsistent positions 

under oath, (2) did so intentionally in a manner “calculated to make a mockery of 

the judicial system,” and (3) would gain an “unfair advantage” from his duplicity. 

See Ajaka v. Brooksamerica Mortg. Corp., 453 F.3d 1339, 1344-45 (11th Cir. 

2006). All of these factors favor estoppel here. 

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First, Dorfman’s counsel has taken clearly inconsistent positions while 

governed by a duty of candor to the court.

8

 As discussed above, he persuaded the 

district court to postpone the hearing and then pulled a U-turn after the court had 

done so. Second, Dorfman’s denial—both to the district court and now to this 

Court—that he consented to an extension beyond January 29 would seriously 

undermine the integrity of the courts’ processes. He successfully moved to 

postpone the January 29 hearing and he directly agreed to extend the TRO beyond 

that date. See supra pp. 4-5. He expressly asked for the April 16 hearing date, 

telling the court that the requested day “works for Mr. Dorfman,” and then 

reversed course just days later. See supra p. 6. Third, Dorfman would gain an 

unfair advantage if he were permitted to appeal the TRO. To this point, the FTC 

has not had an opportunity to present to the district court all the evidence to 

support preliminary relief. Similarly, this Court can examine the matter in this 

appeal only on a highly limited record that places the FTC at a disadvantage. 

 

8 His submissions to the district court were governed by Fed. R. Civ. P. 11(b), 

which “may be fairly analogized to taking a position ‘under oath’ for the purposes 

of judicial estoppel.” Valentine-Johnson v. Roche, 386 F.3d 800, 812 (6th Cir. 

2004). See also Allapattah Servs., Inc. v. Exxon Corp., 372 F. Supp. 2d 1344, 1368 

n.12 (S.D. Fla. 2005) (same). 

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II. DORFMAN LACKS STANDING TO CHALLENGE DELAYS IN HOLDING 

THE PRELIMINARY INJUNCTION HEARING

“To establish appellate standing, a litigant must ‘prove that he has suffered a 

concrete and particularized injury that is fairly traceable to the challenged conduct, 

and is likely to be redressed by a favorable judicial decision.’” United States v. 

Amodeo, 916 F.3d 967, 971 (11th Cir. 2019) (quoting Hollingsworth v. Perry, 570 

U.S. 693, 704 (2013)). Dorfman lacks standing under that test.

To begin with, we doubt that he has suffered a concrete or particularized 

injury in the Article III sense. The schedule of the preliminary injunction hearing 

is the product of Dorfman’s own conduct. Indeed, the district court offered to set a 

hearing date earlier than April 16, but Dorfman did not respond. See supra p. 7. 

Having passed up the opportunity, he can hardly claim to be injured by its absence.

Dorfman also stands to gain no redress. His grievance is that he has been 

denied a “meaningful opportunity to be heard.” D.E. 79 (FTC Exh. 13) at 9; see id. 

at 25-26. But the district court has scheduled a hearing on April 16, at which 

Dorfman will have the meaningful opportunity he purports to seek. If anything, 

this appeal will make him worse off by further delaying matters while the TRO 

remains in effect. If the district court enters a preliminary injunction, Dorfman 

may properly appeal from that order. 

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CONCLUSION

The Court should dismiss the appeal for lack of jurisdiction and lack of 

standing. 

Respectfully submitted,

ALDEN F. ABBOTT

General Counsel

JOEL MARCUS

Deputy General Counsel

March 27, 2019 /s/ Bradley Grossman

BRADLEY DAX GROSSMAN

Attorney

FEDERAL TRADE COMMISSION

Office of the General Counsel 

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

(202) 326-2994

bgrossman@ftc.gov

Of Counsel:

ELIZABETH C. SCOTT

JAMES H. DAVIS

JOANNIE WEI 

Attorneys

FEDERAL TRADE COMMISSION

Chicago, Illinois 60604

Case: 19-10840 Date Filed: 03/27/2019 Page: 17 of 19 
CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(g), I certify that the foregoing document

complies with the volume limitations of Fed. R. App. P. 27(d)(2)(A) because it 

contains 3,121 words, as created by Microsoft Word, excluding the items that may 

be excluded under Fed. R. App. P. 32(f). 

March 27, 2019 /s/ Bradley D. Grossman 

Bradley Dax Grossman

Attorney 

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

Case: 19-10840 Date Filed: 03/27/2019 Page: 18 of 19 
CERTIFICATE OF SERVICE

I certify that on March 27, 2019, I filed the foregoing with the Court’s 

appellate CM-ECF system, and that I caused the foregoing to be served through the 

CM-ECF system on counsel of record for defendant-appellant, who are registered 

ECF users.

Dated: March 27, 2019 /s/ Bradley Grossman

Bradley Dax Grossman

Attorney

Office of the General Counsel

Federal Trade Commission

600 Pennsylvania Avenue NW

Washington, DC 20580

(202) 326-2994 (telephone)

(202) 326-2477 (facsimile)

bgrossman@ftc.gov

Case: 19-10840 Date Filed: 03/27/2019 Page: 19 of 19