Case 2:20-cv-00542-SPC-MRM Document 69 Filed 03/21/22 Page 1 of 11 PageID 2897 

UNITED STATES DISTRICT COURT 

MIDDLE DISTRICT OF FLORIDA 

FORT MYERS DIVISION 

FEDERAL TRADE COMMISSION, 

Plaintiff, 

v. Case No.: 2:20-cv-542-SPC-MRM 

SPM THERMO-SHIELD, INC., 

PETER J. SPISKA, and GEORGE 

P. SPISKA, 

Defendants. 

/ 

OPINION AND ORDER1 

Before the Court is the Federal Trade Commission’s Motion for

Summary Judgment (Doc. 61), along with Defendants’ response (Doc. 67), and 

the FTC’s reply (Doc. 68). 

The FTC brings this enforcement action under Section 13(b) of the 

Federal Trade Commission Act, 15 U.S.C. § 53(b), to obtain permanent 

injunctive relief for Defendants’ acts in violation of Section 5(a) of the FTC Act, 

15 U.S.C. § 45(a). The FTC alleges that SPM Thermo-Shield, Inc., and its 

principals—a father-son duo—Peter Spiska (President) and George Spiska 

1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using 

hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties 

or the services or products they provide, nor does it have any agreements with them. The 

Court is also not responsible for a hyperlink’s availability and functionality, and a failed

hyperlink does not affect this Order. 
 

 

 

 

 

 

 

 

 

 

 

Case 2:20-cv-00542-SPC-MRM Document 69 Filed 03/21/22 Page 2 of 11 PageID 2898 

(Vice President), make false or unsubstantiated performance claims about 

SPM’s architectural coatings products (which include Thermo-Shield Roof 

Coating, Thermo-Shield Exterior Wall Coating, and Thermo-Shield Interior 

Wall Coating).2 The Court grants the Motion for the below reasons. 

BACKGROUND 

Joseph Ravner acquired SPM in the 1990s and Peter Spiska has been 

involved with SPM since 1994 as a distributor, and later as a director. The 

Spiskas bought SPM in 2012 after Ravner lost ownership in bankruptcy. Along 

with the acquisition of SPM came a box of paper materials that included test 

reports, certifications, and studies for SPM products. The Spiskas did not 

know the exact origins of the statements made in the materials, but they used 

them to create the company website. The website claimed that Thermo-Shield 

Coatings have certain insulation values or insulation equivalent values known 

as “R-values,” and that the coatings will save consumers money on energy 

costs. A product’s R-value is a measure of its resistance to heat flow through 

a thickness of material: the higher the R-value, the greater the insulating 

power. The Spiskas also provided the test reports and studies to its 

distributors. 

2 The FTC lumps together both the roof and wall coatings in the First Amended Complaint, 

defining all three coatings as “Thermo-Shield Coatings.” (Doc. 38 at 2). The Court does the 

same. 

2 
 

 

 

 

 

 

 

 

 

 

 

 

Case 2:20-cv-00542-SPC-MRM Document 69 Filed 03/21/22 Page 3 of 11 PageID 2899 

Over a year before suing, the FTC informed Defendants of its 

investigation into their R-value and other energy savings claims and requested 

substantiation for those claims. Defendants responded with the package of 

materials they acquired from Ravner (see list of materials, Doc. 67 at 8-9), and 

demurred at first, claiming, “All of our statements on our website and 

literature are substantiated and documented by the numerous tests provided.”

(Doc. 67 at 9). But Defendants didn’t take exception for long. By August 2019,

Defendants had removed references to R-values from their website and 

marketing materials and now concede that Thermo-Shield Coatings do not 

have R-value or R-value equivalents, to which their own expert, Hashem 

Akbari, agrees. In fact, Defendants say they knew their products had no such 

R-value since they got involved with SPM, back in 1994. They acknowledge 

that tests referenced on the SPM website reporting R-values were not up to 

date with science and were based on studies from decades ago. Defendants 

still claim that their products have a high solar reflective index, resulting in 

energy savings to their customers. 

In July 2020, FTC filed this action, seeking permanent injunctive relief, 

rescission or reformation of contracts, restitution, refund of monies paid, 

disgorgement of ill-gotten monies, and any other relief the Court deems just 

and proper. (Doc. 1 at 13). The Court struck the allegations for equitable 

monetary relief as inconsistent with AMG Capital Mgmt., LLC v. FTC, 141 S. 

3 
 

 

 

 

 

Case 2:20-cv-00542-SPC-MRM Document 69 Filed 03/21/22 Page 4 of 11 PageID 2900 

Ct. 1341 (2021) (Doc. 37), and the FTC filed a First Amended Complaint 

seeking only injunctive relief (Doc. 38). 

The First Amended Complaint contains three counts. First is a count for 

making false or unsubstantiated performance claims. In this count, the FTC 

alleges that Defendants violated the FTC Act by misleading consumers into 

the mistaken belief that: 

Thermo-Shield Coatings have insulation values or insulation 

equivalent values of R-20, R-21, R-22, and R-40 when applied as 

Defendants instruct. 

Using Thermo-Shield Coatings will save consumers money, 

including, for example, by saving them up to 50% on heating and 

cooling costs. 

The second count is for false establishment of R-values, alleging that testing 

does not establish represented R-values. And the third count for means and 

instrumentalities alleges that Defendants furnished resellers with 

promotional materials that make false or misleading representations. 

The R-value claims reappeared on SPM’s website during this action—in 

2020—because of what SPM says is a third-party’s error. The claims were 

removed within two or three days. Further, Defendants admit that their 

conduct was ongoing when the FTC filed their Amended Complaint in June 

2021. (Doc. 39 ¶ 23). 

4 
 

 

 

 

 

Case 2:20-cv-00542-SPC-MRM Document 69 Filed 03/21/22 Page 5 of 11 PageID 2901 

LEGAL STANDARD 

“The court shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it

“might affect the outcome of the suit under the governing law.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a material fact is in genuine 

dispute “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Id. 

The moving party bears the initial burden to show the lack of genuinely 

disputed material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 

2008). If carried, the burden shifts onto the nonmoving party to point out a 

genuine dispute. Beard v. Banks, 548 U.S. 521, 529 (2006). At this stage, 

courts view all facts and draw all reasonable inferences in the light most 

favorable to the nonmoving party. Rojas v. Florida, 285 F.3d 1339, 1341-42 

(11th Cir. 2002). 

DISCUSSION 

A. R-Value Claims (Counts 1 and 2) 

Section 13(b) of the FTC Act authorizes the FTC to sue in federal court 

when it has reason to believe a defendant is violating or about to violate Section 

5 of the FTC Act. 15 U.S.C. § 53(b). Section 5(a) of the FTC Act prohibits 

“unfair or deceptive acts or practice in or affecting commerce.” “To establish

5 
 

 

 

 

 

 

 

 

Case 2:20-cv-00542-SPC-MRM Document 69 Filed 03/21/22 Page 6 of 11 PageID 2902 

liability under section 5 of the FTCA, the FTC must establish that (1) there 

was a representation; (2) the representation was likely to mislead customers 

acting reasonably under the circumstances, and (3) the representation was 

material.” F.T.C. v. Tashman, 318 F.3d 1273, 1277 (11th Cir. 2003). 

Counts 1 and 2 concern R-value claims. Defendants concede that the Rvalue claims were false and removed them from their website and marketing 

materials in 2019, before this suit was filed. (Doc. 67 ¶¶ 26, 30, 31, 32, 34). 

Defendants argue summary judgment is not appropriate because Section 13(b) 

does not authorize the FTC to seek redress solely for past harms, citing FTC v. 

Shire Viropharma, Inc., 917 F.3d 147 (3d Cir. 2019), which held that “Section

13(b) does not permit the FTC to bring a claim based on long-past conduct 

without some evidence that the defendant ‘is’ committing or ‘is about to’

commit another violation.” Id. at 156. Defendants assert that the FTC does 

not put forward any facts that could show a reasonable basis to believe that 

they are violating or will imminently violate the law.3 

The Eleventh Circuit has addressed this issue. In FTC v. USA Financial, 

LLC, defendants argued that the district court erred by granting a permanent 

injunction to enjoin them from engaging in future violations of the FTC under 

3 Defendants’ assertion here is also set forth as their Second Affirmative Defense. Defendants 

argue that the FTC has not put forward facts that dispute this defense. Not so. As discussed, 

the FTC presents undisputed facts of Defendants’ past conduct to show that the R-value 

claims are likely to recur. 

6 
 

 

 

 

 

 

 

 

Case 2:20-cv-00542-SPC-MRM Document 69 Filed 03/21/22 Page 7 of 11 PageID 2903 

Section 13(b) based on past violations that ceased before the FTC sued and had 

not been shown as likely to recur. 415 F. App’x 970 (11th Cir. 2011). Under 

such circumstances, “permanent injunctive relief is appropriate if the 

defendant’s past conduct indicates that there is a reasonable likelihood of 

further violations in the future.” Id. at 975 (quoted authority omitted). The 

district court found that permanent injunctive relief was necessary to prevent 

future violations because of the formation of new corporate entities, and the 

Eleventh Circuit agreed. Id. 

The Court finds here that the FTC has presented undisputed facts of 

Defendants’ past conduct to show that the R-value claims are likely to recur. 

Although Defendants concede and testified under oath that the R-value claims 

are false, that the claims were removed, and that the claims will not reappear, 

the claims did reappear after this lawsuit was filed. Although Defendants say 

this was because of a third-party’s error, the R-value claims stayed up on the 

website for as long as three days, unnoticed by Defendants. At a minimum, 

this shows that Defendants have not taken steps on their own to ensure that 

the false R-value claims do not reappear, or that they will take swift action to 

remove such claims if they appear, making injunctive relief appropriate. At 

bottom, the FTC Act authorizes the FTC to sue when it has reason to believe 

that a defendant is about to violate Section 5 of the Act. 15 U.S.C. § 53(b). 

7 
 

 

 

 

 

Case 2:20-cv-00542-SPC-MRM Document 69 Filed 03/21/22 Page 8 of 11 PageID 2904 

B. Energy Cost Savings Claims 

The FTC offers several advertisements from Defendants’ website and 

marketing materials of energy cost savings claims it says are false or 

unsubstantiated. The FTC relies on the report of its expert witness, David 

Yarbrough, who reviewed the advertisements and opined that the cost savings 

claims lack sufficient technical justification and are unsupported by competent 

and reliable scientific evidence. (Doc. 61-7 at 304). Defendants’ expert does

not say otherwise, and Defendants do not deny placing the advertisements but 

say either that the claims have been taken down or that the claims are 

substantiated. Specifically, Defendants claim that their products can reduce 

energy bills by up to 40% or 50%. If an establishment claim “states a specific

type of substantiation,” the “advertiser must possess the specific

substantiation claimed.” Removatron Int’l Corp. v. FTC, 884 F.2d 1489, 1492 

n.3 (1st Cir. 1989). Defendants say that Thermo-Shield Coatings’ energy

savings component is something that end users and distributors are interested 

in. So, any representation about energy savings is material. See F.T.C. v. 

Atlantex Assocs., No. 87-0045-CIV-NESBITT, 1987 WL 20384, at *11 (S.D. Fla. 

Nov. 25, 1987) aff’d, 872 F.2d 966 (11th Cir. 1989). 

The facts which Defendants have admitted establish that their energy 

savings claims are unsubstantiated. Both sides say that Thermo-Shield 

Coatings might offer energy savings, but that any such savings would vary 

8 
 

 

 

 

 

 

Case 2:20-cv-00542-SPC-MRM Document 69 Filed 03/21/22 Page 9 of 11 PageID 2905 

widely based on several factors, most important being that savings vary 

depending on the climate. (Doc. 61 ¶¶ 38, 42). Defendants also admit that if 

Thermo-Shield is applied to a well-insulated white roof, there is no energy 

savings, and admit that they used a “broad brush” in making an “up to” 40%

savings claim on their website, and the coatings do not provide up to 40% 

heating and cooling savings in all building types. (Doc. 61 ¶ 45). But these 

factors are not disclosed to consumers and that is the problem. (See Doc. 61 ¶ 

41, Peter Spiska admits marketing materials for Thermo-Shield Coatings have 

not clearly disclosed that location is critical to energy savings.). Even 

Defendants own expert, Dr. Akbari, says that any claim that Thermo-Shield 

users will save up to 50% on their heating and cooling costs should be “really,

really qualified.” (Doc. 61-7 at 430). The factors Dr. Akbari considers 

important are the building type, climate, level of construction, and building 

age.4 (Doc. 61-7 at 431). Yet Defendants include no such qualifiers when 

advertising to their consumers. 

Defendants state in their Response that they “have provided a plethora

of substantiation and explanation that show their claims relating to the energy 

savings benefits provided by Thermo-Shield Coatings are true.” (Doc. 67 at 

4 Dr. Akbari addresses only roof coatings. 

9 
 

 

 

 

 

 

 

Case 2:20-cv-00542-SPC-MRM Document 69 Filed 03/21/22 Page 10 of 11 PageID 2906 

19). Yet Defendants include no citation to evidence to support such a 

statement, nor do they submit any evidence opposing summary judgment. 

At bottom, because Defendants misrepresented Thermo-Shield Coatings’ 

energy cost savings, they are subject to liability under 15 U.S.C. § 45(a). 

C. Count 3 – Means and Instrumentalities 

For the same reasons as Counts 1 and 2, summary judgment is 

appropriate as to Count 3. Count 3 alleges that Defendants furnished resellers 

with promotional materials that make false or misleading representations. 

(See Doc. 61 ¶ 41, Peter Spiska admits marketing materials for Thermo-Shield 

Coatings have not clearly disclosed that location is critical to energy savings.). 

An advertisement is “illegal if it contains a false claim inducing the purchase 

of a product inferior to the product the consumer bargained for.” Carter Prods., 

Inc. v. F.T.C., 323 F.2d 523, 528 (5th Cir. 1963). 

D. Form of Injunctive Relief 

Under Federal Rule of Civil Procedure 65(d), in every order granting an 

injunction the Court must describe in detail the act or acts restrained or 

required. Fed. R. Civ. P. 65(d). The Court has not yet been provided with the 

form of injunctive relief the FTC requests. The FTC states that if summary 

judgment is granted, it will provide the Court with a proposed injunction for 

its review. Defendants have not objected to such a procedure. Thus, the Court 

10 
 

 

-

UNITED STATES DISTRICT JUDGE 

Case 2:20-cv-00542-SPC-MRM Document 69 Filed 03/21/22 Page 11 of 11 PageID 2907 

will allow the FTC time to submit a proposed order after the parties have 

conferred and will delay the entry of judgment until that time. 

It seems based on the evidence and expert testimony that the parties 

should have long ago come to an agreement on the claims. The Court hopes 

that the parties can work together and stipulate to the form of the injunction. 

Accordingly, it is now 

ORDERED: 

The Federal Trade Commission’s Motion for Summary Judgment (Doc. 

61) is GRANTED. 

(1) The FTC will file a proposed order of injunctive relief by April 11, 

2022. 

(2) The Court delays the entry of judgment pending the entry of the 

injunction. 

DONE and ORDERED in Fort Myers, Florida this on March 21, 2022. 

Copies: All Parties of Record 

11