No. 23-1616 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT 

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

FEDERAL TRADE COMMISSION, 

Plaintiff-Appellee, 

v. 

AMERICAN SCREENING, LLC, 

a Louisiana limited liability company; 

RON KILGARLIN, JR., 

individually and as an officer of American Screening, LLC; and 

SHAWN KILGARLIN, 

individually and as an officer of American Screening, LLC, 

Defendants-Appellants.

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

On Appeal from the United States District Court 

for the Eastern District of Missouri – St. Louis 

No. 4:20-cv-01021 (Hon. Ronnie L. White) 

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

CORRECTED ANSWERING BRIEF 

FOR THE FEDERAL TRADE COMMISSION

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

SAMUEL LEVINE ANISHA S. DASGUPTA

Director General Counsel 

ANNE COLLESANO MARIEL GOETZ

Attorney Acting Director of Litigation 

BUREAU OF CONSUMER PROTECTION MICHAEL D. BERGMAN

Attorney 

FEDERAL TRADE COMMISSION

600 Pennsylvania Avenue, N.W. 

Washington, DC 20580 

(202) 326-3184 

mbergman@ftc.gov

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SUMMARY OF THE CASE

The Federal Trade Commission sued appellants for failing to 

honor their shipping promises or make required refunds for personal 

protective equipment in violation of FTC law and rules during the first 

year of the COVID-19 pandemic. The district court granted summary 

judgment for the FTC, found all appellants liable for the misconduct, 

ordered them to refund $14.6 million to consumers, and enjoined them 

from future violations. Appellants contest the amount of the refund and 

the ban on future sales. But consumers were entitled to full refunds 

based on appellants’ violations of FTC rules and appellants provided no 

contrary evidence. Imposing fencing-in relief against future sales was 

reasonably based on appellants’ “egregious” misconduct during the 

pandemic. Appellants also contend that the court erred by holding 

Shawn Kilgarlin individually liable and by refusing to consider their 

supplemental fact statement. But uncontested evidence showed 

Shawn’s corporate control, and appellants’ statement was noncompliant 

with local rules and irrelevant. This case presents no novel legal issues 

and the facts are straightforward. Should the Court deem oral 

argument appropriate, 10 minutes would be sufficient. 

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TABLE OF CONTENTS 

Summary of the Case .................................................................................. i

Table of Authorities ................................................................................... iv

Introduction ................................................................................................ 1

Statement of Jurisdiction ........................................................................... 4

Statement of the Issues Presented ............................................................ 4

Statement of the Case ................................................................................ 6

A. Appellants’ Deceptive Practices .......................................................... 6

B. The FTC’s Enforcement Suit and Orders on Review ....................... 11

Summary of the Argument ...................................................................... 18

Argument .................................................................................................. 22

I. The Monetary and Injunctive Relief Ordered by the 

District Court Was Proper. ................................................................ 22

A. The District Court’s Monetary Relief Award Was 

Proper Under Section 19 of the FTC Act. .................................. 23

1. The District Court Properly Held That The FTC 

Was Not Required To Prove Individual Reliance 

Or Injury. ............................................................................. 24

2. The District Court Did Not Abuse Its Discretion 

By Treating Orders Shipped After Two Days As 

Late. ...................................................................................... 29

3. The District Court Was Not Required to Deduct 

the Value of the Products Shipped from the 

Refund Amount or to Order the Return of the 

Shipped Product. .................................................................. 33

B. The District Court Properly Enjoined Appellants 

From Future Sales of Protective Goods and Services. .............. 39

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iii 

II. The District Court Properly Held Shawn Kilgarlin 

Personally Liable. ............................................................................... 43

III. The District Court Properly Declined to Consider 

Appellants’ Supplemental Statement of Facts in 

Accordance With Local Rules. ........................................................... 50

Conclusion ................................................................................................. 55

CERTIFICATE OF COMPLIANCE ............................................................ 

CERTIFICATES OF SERVICE AND ELECTRONIC VIRUS 

SCAN ...................................................................................................... 

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iv 

TABLE OF AUTHORITIES 

CASES

Americans United for Separation of Church & 

State v. Prison Fellowship Ministries, Inc., 

509 F.3d 406 (8th Cir. 2007) ................................................................. 40 

Baxter v. Palmigiano, 

425 U.S. 308 (1976) ............................................................................... 48 

Bigelow v. RKO Radio Pictures, Inc., 

327 U.S. 251 (1946) ............................................................................... 32 

Brown v. Plata, 

563 U.S. 493 (2011) ............................................................................... 40 

Carter v. Pulaski Cnty. Special Sch. Dist., 

956 F.3d 1055 (8th Cir. 2020) ............................................................... 44 

CFPB v. Gordon, 

819 F.3d 1179 (9th Cir. 2016) ................................................... 26, 36, 38 

Doe v. Glanzer, 

232 F.3d 1258 (9th Cir. 2000) ............................................................... 49 

FTC v. Bay Area Bus. Council, Inc., 

423 F.3d 627 (7th Cir. 2005) ............................................................. 5, 44 

FTC v. Blue Hippo Funding, 

762 F.3d 238 (2nd Cir. 2014) ................................................................ 25 

FTC v. Colgate-Palmolive Co., 

380 U.S. 374 (1965) ........................................................................... 5, 40 

FTC v. Commerce Planet, 

815 F.3d 593 (9th Cir. 2016) ................................................................. 35 

FTC v. Elegant Solutions, Inc., 

No. 20-55766, 2022 WL 2072735 (9th Cir. June 

9, 2022) .................................................................................................. 47 

FTC v. Figgie Int’l, 

994 F.2d 595 (9th Cir. 1993) ........................................... 4, 25, 31, 38, 39 

FTC v. Gem Merch. Corp., 

87 F.3d 466 (11th Cir. 1996) ............................................................. 5, 44 

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FTC v. Kuykendall, 

371 F.3d 745 (10th Cir. 2004) ................................... 5, 26, 32, 35, 37, 38 

FTC v. Moses, 

913 F.3d 297 (2d Cir. 2019) .................................................. 5, 35, 36, 45 

FTC v. Romero, 

No. 5:21-CV-343-BJD-PRL, 2023 WL 2445339 

(M.D. Fla. Feb. 27, 2023); ..................................................................... 54 

FTC v. Security Rare Coin & Bullion Co., 

931 F.2d 1312 (8th Cir. 1991) ............................. 4, 16, 19, 24, 25, 26, 37 

FTC v. Zaappaaz, LLC, 

No. 4:20-CV-02717, 2023 WL 5018433 (S.D. 

Tex. Aug. 3, 2023) .................................................................................. 54 

FTC v. Zaappaaz, LLC., 

No. 4:20-CV-2717, 2023 WL 5020618 (S.D. Tex. 

June 9, 2023) ......................................................................................... 54 

In re Caucus Distributors, Inc., 

83 B.R. 921 (E.D. Va. Bankr. 1988) ...................................................... 49 

Jones v. UPS, 

461 F.3d 982 (8th Cir. 2006) ............................................................. 5, 51 

Kaliannan v. Liang, 

2 F.4th 727 (8th Cir. 2021) .................................................................. 44 

Lemon v. Kurtzman, 

411 U.S. 192 (1973) .............................................................................. 40 

McGregor v. Chierico, 

206 F.3d 1378 (11th Cir. 2000) ................................................. 26, 37, 38 

N.W. Bank & Trust Co. v. First Ill. Nat’l Bank, 

354 F.3d 721 (8th Cir. 2003) ................................................. 5, 50, 52, 53 

SEC v. Colello, 

139 F.3d 674 (9th Cir.1998) .................................................................. 49 

Thompson v. Normandy Sch. Collaborative, 

No. 4:19-CV-03220-MTS, 2021 WL 3286810 

(E.D. Mo. Aug. 2, 2021) ......................................................................... 53 

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Triple Five of Minn. v. Simon, 

404 F.3d 1088 (8th Cir. 2005) ............................................................... 22 

United States v. W.T. Grant Co., 

345 U.S. 629 (1953) ........................................................................... 5, 40 

STATUTES

15 U.S.C. § 45 ................................................................................. 2, 11, 14 

15 U.S.C. § 53(b) ................................................................. 5, 11, 12, 15, 39 

15 U.S.C. § 57b.................................................... 3, 4, 11, 12, 16, 23, 25, 39 

39 U.S.C. § 3009........................................................................................ 35 

OTHER AUTHORITIES

RULES

16 C.F.R. § 435 .................................................... 2, 4, 11, 12, 13, 29, 32, 34 

40 Fed. Reg. 51582 .................................................................................... 28 

79 Fed. Reg. 55615-01 .............................................................................. 28 

E.D. Mo. L.R. 4.01 ......................................................... 5, 14, 15, 50, 51, 52 

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INTRODUCTION 

When the COVID-19 pandemic hit the United States in March 

2020, consumer demand skyrocketed for items like face masks, hand 

sanitizer, and other forms of personal protective equipment (“PPE”). 

Appellants Ron and Shawn Kilgarlin and their company American 

Screening sought to take advantage of that demand and advertised on 

their website that they had PPE products “in stock” and “available to 

ship,” and that items would ship either “24-48 hours after processing” or 

within “7-10 business days.” They also purported to offer overnight and 

expedited delivery. Predictably, American Screening was soon flooded 

with new PPE orders, for which it collected payment up front. 

But appellants’ representations that items were in stock and 

would ship quickly were false. Appellants lacked sufficient inventory to 

satisfy the orders they solicited, and had no reasonable expectation that 

they would be able to ship products within the advertised timeframes. 

They nonetheless continued taking orders and collecting payments. 

When consumers complained that their products had not arrived as 

promised, appellants rarely cancelled the orders or offered refunds, 

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citing bogus excuses. Appellants also at times performed “SKU swaps” 

where they sent products different than the ones ordered. 

The FTC sued the Kilgarlins and American Screening for 

violations of the FTC Act’s prohibition on deceptive acts or practices, 15 

U.S.C. § 45, and the Mail, Internet, or Telephone Order Merchandise 

Rule (“MITOR”), 16 C.F.R. Pt. 435, which requires sellers to have a 

reasonable basis for their shipping claims and to offer refunds where 

they cannot ship products within the advertised time frames. The 

district court granted summary judgment for the FTC, finding 

appellants liable for both claims. To remedy the MITOR violations, the 

court entered a monetary judgment of $14.6 million, to be paid into a 

fund administered by the FTC and used to provide refunds to 

consumers, with any unclaimed funds to be returned to appellants. The 

district court also entered an injunction permanently barring appellants 

from further sales of protective goods and services and from further 

MITOR violations or misrepresentations about shipping times or 

refunds for any product. 

On appeal, appellants argue that the district court abused its 

discretion in calculating the monetary relief and by permanently 

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barring appellants from selling protective goods or services. Appellants 

also argue that the district court erred by holding Shawn Kilgarlin 

individually liable and by rejecting a proposed “supplemental 

statement” submitted in opposition to summary judgment. 

None of these arguments have merit. The district court has broad 

discretion under Section 19 of the FTC Act, 15 U.S.C. § 57b, to grant 

such relief as it found necessary to redress consumer injury, including 

the refund of money. The court could presume consumer reliance 

because appellants made widely disseminated material misstatements. 

Consumers were injured when their orders arrived late and without 

receiving their MITOR-required refund offers. Appellants claim the 

$14.6 million figure is too high, but that amount was based on their own 

business records, and they never provided alternative calculations or 

evidence showing deductions from that amount. The district court also 

had broad discretion to fashion injunctive relief to prevent future 

violations, including the ban on sales of protective goods and services, 

based on the court’s findings that appellants’ conduct was “egregious” 

and that they likely will violate the law again. 

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The district court properly held Shawn Kilgarlin individually 

liable, based on undisputed evidence that she had authority to control 

American Screening’s conduct. And the court rightly rejected 

appellants’ supplemental facts as violative of local rules and irrelevant. 

This Court should affirm the judgment. 

STATEMENT OF JURISDICTION 

The district court had subject-matter jurisdiction pursuant to 28 

U.S.C. §§ 1331, 1337(a), and 1345. The district court issued its 

summary judgment decision on July 14, 2022, and its Final Order and 

Judgment on January 31, 2023. Defendants timely filed a notice of 

appeal on March 30, 2023 and an amended notice of appeal on March 

31, 2023. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. 

STATEMENT OF THE ISSUES PRESENTED 

1. Did the district court act within the scope of its discretion 

with respect to the amount of monetary relief for the MITOR violations? 

 15 U.S.C. § 57b 

 16 C.F.R. § 435.2 

 FTC v. Sec. Rare Coin & Bullion Corp., 931 F.2d 1312 (8th 

Cir. 1991) 

 FTC v. Figgie Int’l, 994 F.2d 595 (9th Cir. 1993) 

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 FTC v. Moses, 913 F.3d 297 (2d Cir. 2019) 

 FTC v. Kuykendall, 371 F.3d 745 (10th Cir. 2004) 

2. Did the district court act within the scope of its discretion in 

permanently enjoining appellants from future marketing and sales of 

protective goods and services? 

 15 U.S.C. § 53(b) 

 FTC v. Colgate-Palmolive Co., 380 U.S. 374 (1965) 

 United States v. W.T. Grant Co., 345 U.S. 629 (1953) 

3. Did the district court properly hold appellant Shawn 

Kilgarlin individually liable for American Screening’s violations of 

MITOR and the FTC Act? 

 FTC v. Bay Area Bus. Council, Inc., 423 F.3d 627 (7th Cir. 

2005) 

 FTC v. Gem Merch. Corp., 87 F.3d 466 (11th Cir. 1996) 

 FTC v. Moses, 913 F.3d 297 (2d Cir. 2019) 

4. Did the district court act within the scope of its discretion in not 

considering appellants’ “Supplemental Statement of Facts”? 

 E.D. Mo. L.R. 4.01(E) 

 N.W. Bank & Trust Co. v. First Ill. Nat’l Bank, 354 F.3d 721 

(8th Cir. 2003) 

 Jones v. UPS, 461 F.3d 982 (8th Cir. 2006)

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STATEMENT OF THE CASE 

A. Appellants’ Deceptive Practices 

American Screening markets and sells medical supplies and 

equipment, mostly through the internet. Ron Kilgarlin is the company’s 

founder, CEO, and president. He is responsible for “overseeing and 

managing the day-to-day affairs and operations of the company in all 

aspects,” including department managers, website content, policy and 

procedures, expenditures, and at least some marketing efforts. App. 

282, 297; R. Doc. 80, at 2, 17.1 Shawn Kilgarlin (who is married to Ron) 

is the Quality and International Organizations of Standardization 

(“ISO”) manager for American Screening. She also held herself out as 

American Screening’s Chief Operating Officer, although when asked 

about that role at deposition she invoked her Fifth Amendment right 

against self-incrimination. App. 282, 296; R. Doc. 80, at 2, 16. 

Regardless of her title, she had significant operational responsibilities 

for the company, including authority over inventory, customer service, 

1 “App.” refers to appellants’ Appendix; “FTCApp.” refers to the FTC’s 

Appendix; “FTCApp2.” refers to the FTC’s Appendix Vol. 2; “R. Doc.” 

refers to district court docket entries; “Br.” refers to appellants’ opening 

Brief. Page cites (other than to appellants’ opening Brief) are to ECFgenerated page numbers. 

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product orders, and web content; she supervised employees and helped 

her husband run the company. App. 296-297; R. Doc. 80, at 16-17. 

This case concerns American Screening’s sales of PPE, including 

items such as hand sanitizer, face masks, disinfecting wipes, gowns, 

face shields, goggles, shoe covers, and thermometers. Prior to 2020, 

American Screening sold small amounts of PPE, mainly as ancillary 

supplies to its other products. FTCApp. 226-227; R. Doc. 55-1, at 2-3 (¶¶ 

9, 11-17). When the COVID pandemic hit in early 2020, however, 

American Screening began an aggressive online marketing campaign to 

sell PPE. In just March and April of that year, American Screening 

spent more than $1.5 million on advertising with Google AdWords to 

boost online PPE sales. FTCApp. 228-229; R. Doc. 55-1, at 4-5 (¶¶ 31, 

35). The company also sent mass promotional emails hawking 

“PRODUCTS TO RESPOND TO COVID-19” and “Essentials for 

Combating COVID-19,” and urging consumers to “BUY NOW.” 

FTCApp. 228-229; R. Doc. 55-1, at 4-5, 15 (¶¶ 37, 38, 41-44, 49, 123). 

The marketing campaign drove consumers to American 

Screening’s website, which told consumers that the company had PPE 

products “in stock” and “available to ship.” App. 283; R. Doc. 80, at 3. At 

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least at the start of the pandemic, the website stated that “[a]l shipping 

occurs 24-48 hours after processing, pending product availability.” Id. 

The company’s representatives reiterated this timeframe directly to 

some customers by email. FTCApp. 235; R. Doc. 55-1, at 11 (¶¶ 76-77). 

 At some point in or around March 2020 (the precise date is 

unclear), American Screening updated the website to state prominently 

at the top of the homepage that “Products may ship 7-10 business days 

after order has been placed.” App. 283; R. Doc. 80, at 3; FTCApp. 236, 

239; R. Doc. 55-1, at 12, 15 (¶¶ 87, 124, 126, 127). 

But even then, for some period of time that appellants cannot 

determine, the 24-48 hour promise remained on the website despite the 

addition of the 7-10 business day claim. See FTCApp2. 281; R. Doc. 51, 

at 12 (webpage in mid-June 2020 promising shipping “7-10 business 

days after order is placed” along with the company’s online “shipping 

policy” of “24-48 hours after processing.”). The company also offered 

overnight shipping, for an extra fee. App. 283; R. Doc. 80 at 3; FTCApp. 

236-237; R. Doc. 55-1, at 12-13 (¶¶ 88-90). The company collected 

payments up front, charging customers as soon as they hit “submit” on 

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their orders, and before confirming that the item was in stock. FTCApp. 

233; R. Doc. 55-1, at 9 (¶¶ 62-65). 

At a time when consumers were desperate, store shelves were 

empty, and many retailers had run out of inventory, American 

Screening’s “in stock” and fast-shipping claims were wildly successful in 

driving consumer purchases. Many customers complained that they had 

ordered PPE from American Screening primarily because of its shipping 

representations and purported product availability. FTCApp. 235-237; 

R. Doc. 55-1, at 11-13 (¶¶ 78-82, 87, 93). But the company’s 

representations were false—it did not have nearly enough PPE “in 

stock” to satisfy customer demand. In fact, from March through 

November 2020, American Screening did not even know how much 

inventory it had in stock. App. 284, 288; R. Doc. 80, at 4, 8. Nonetheless, 

the company permitted customers to order PPE items advertised as “in 

stock” that were not available, and many did. FTCApp. 244; R. Doc. 55-

1, at 20 (¶¶ 192-195, 202). 

The lack of inventory resulted in backorders, with the result that 

many products did not ship within the 24-48 hours that American 

Screening originally promised or within 7-10 days as it promised on its 

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updated website, or even within 30 days. During at least the early part 

of the pandemic, most PPE products took about six weeks to ship. App. 

289; R. Doc 80, at 9. In thousands of cases, American Screening also 

made “SKU swaps,” where it filled orders with different products than 

what customers had ordered and paid for. FTCApp. 247; R. Doc. 55-1, at 

23 (¶¶ 235. 236). 

American Screening did not comply with MITOR requirements to 

inform affected customers that their products would be delayed or 

obtain their consent to longer shipping times or SKU swaps. Nor did it 

offer customers the opportunity to cancel their orders and obtain a 

refund. The company’s policy was not to cancel orders without a prior 

demand from the customer. And in some cases, even when customers 

requested refunds, the company refused to process them, and instead 

simply shipped the product. App. 285; R. Doc 80, at 5 (citing testimony 

of Shawn Kilgarlin’s assistant). Many customers pursued chargebacks 

through their credit card companies. Id. 

Not surprisingly, thousands of customers complained to the 

company. App. 285; R. Doc. 80, at 5. American Screening’s customer 

service manager testified that throughout 2020, the company was 

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receiving 500 complaints per day about shipping delays, incorrect 

shipments, and failure to give refunds. The company did not respond to 

all of these complaints. App. 285-286; R. Doc. 80, at 5-6.2 

B. The FTC’s Enforcement Suit and Orders on 

Review 

The FTC sued American Screening and the Kilgarlins in August 

2020, alleging that their sales conduct violated the FTC Act’s 

prohibition of deceptive acts or practices, 15 U.S.C. § 45(a), and the 

requirements of MITOR, 16 C.F.R. § 435.2. The complaint sought relief 

under two provisions of the FTC Act: Section 13(b), which authorizes 

courts to issue a permanent injunction against violation of any 

provision of law enforced by the FTC, and Section 19, which authorizes 

courts to grant such relief as they find necessary to redress consumer 

injury resulting from the violation of an FTC rule, such as MITOR. 15 

2 As a result of its deceptive business practices, in 2020, the Better 

Business Bureau revoked American Screening’s accreditation. FTCApp. 

257; R. Doc. 55-1, at 33 (¶ 349). In addition, the Louisiana Attorney 

General sent the company a “Notice of Unfair Trade Practices” 

concerning its questionable inventory and shipping practices, and two 

months later sued American Screening for violating state consumer 

protection laws. FTCApp. 256; R. Doc. 55-1, at 32 (¶¶ 342-343). 

11 

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U.S.C. §§ 53(b), 57b(a)(1), (b). Section 19(b) expressly permits the 

“refund of money” as a type of authorized relief. 15 U.S.C. § 57b(b). 

MITOR prohibits sellers from soliciting online, phone, or mail 

order sales “unless, at the time of the solicitation, the seller has a 

reasonable basis to expect that it will be able to ship any ordered 

merchandise to the buyer ... within the time clearly and conspicuously 

stated in any such solicitation,” or “if no time is clearly and 

conspicuously stated, within thirty (30) days after receipt of a properly 

completed order from the buyer. 16 C.F.R. § 435.2(a)(1). A seller’s 

“failure ... to have records or other documentary proof establishing its 

use of systems and procedures” to assure shipping within these time 

frames creates “a rebuttable presumption that the seller lacked a 

reasonable basis for any expectation of shipment within said applicable 

time.” Id. § 435.2(a)(4). 

MITOR also establishes procedures that apply when a seller is 

unable to ship products within these time frames, regardless of whether 

it had a reasonable basis for the original shipping claims. Within a 

reasonable time, the seller must “offer to the buyer clearly, and 

conspicuously, and without prior demand, an option either to consent to 

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a delay in shipping or to cancel the buyer’s order and receive a prompt 

refund.” Id. § 435.2(b)(1). If a seller fails to provide this option and has 

not shipped the merchandise within the promised timeframe, it must 

“deem [the] order canceled and ... make a prompt refund to the buyer[.]” 

Id. § 435.2(c)(5). Again, the seller’s “failure ... to have records or other 

documentary proof establishing its use of systems and procedures which 

assure compliance” with these requirements creates “a rebuttable 

presumption that the seller failed to comply with said requirement[s].” 

Id. § 435.2(d). 

The FTC’s complaint alleged that appellants violated all three of 

MITOR’s proscribed practices: (1) they solicited PPE orders without any 

reasonable expectation that the products would ship within the 

advertised time frames of 24-48 hours or 7-10 business days; (2) they 

failed to contact customers for consent to the delayed shipping or to 

provide an opportunity to cancel orders and receive a refund; and 

(3) having failed to contact customers, they did not deem the orders 

cancelled and provide a prompt refund. App. 11-12; R. Doc. 1, at 11-12. 

The complaint further alleged that appellants’ shipping representations 

and their claims that PPE items were “in stock” and “available to ship” 

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were false, misleading or unsubstantiated, and thus constituted 

deceptive acts or practices under Section 5(a) the FTC Act, 15 U.S.C. 

§ 45(a). App. 12-13; R. Doc. 1, at 12-13. 

Following discovery, the FTC moved for summary judgment. As 

required by the district court’s local rules, E.D. Mo. R. 4.01(E), the FTC 

submitted a Statement of Uncontroverted Material Facts, with 578 

numbered paragraphs and citations to the record supporting each fact. 

FTCApp. 1-70; R. Doc. 50. Appellants submitted a “Response to 

Statement of Material Facts” (App. 220-258; R. Doc. 53), but that 

document responded to only a quarter of the numbered paragraphs in 

the FTC’s statement. Because appellants did not “specifically 

controvert” the remaining paragraphs of the FTC’s statement, those 

facts were “deemed admitted for purposes of summary judgment.” See 

E.D. Mo. R. 4.01(E).3

Appellants also included in their response a “Supplemental 

Statement of Facts.” App. 236-248, R. Doc. 53, at 27-39. The district 

court declined to consider the “Supplemental Statement” because the 

3 The FTC filed with its reply a statement of the facts that were 

deemed admitted by appellants’ failure to address them. FTCApp. 225; 

R. Doc. 55-1. 

14 

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local rule “does not contemplate a separate statement of facts by the 

opposing party.” App. 282 n.2; R. Doc. 80, at 2 n.2. The court stated that 

even if the Supplemental Statement was intended as a “further 

response to the FTC’s statement,” it was “improper” because “(1) It does 

not note the paragraph number to which it responds, as required by 

Rule 4.01; and (2) It contains numerous irrelevant facts pertaining to 

the progression of the COVID-19 pandemic.” Id. 

Based on the undisputed facts, the district court granted summary 

judgment for the FTC against American Screening on the three MITOR 

claims and the FTC Act’s deceptive acts or practices claim. App. 288-

295; R. Doc. 80, at 8-15. It also held that both Kilgarlins were 

individually liable for American Screening’s violations because they had 

the authority to control the company and knowledge of its wrongful 

acts. App. 295-297; R. Doc. 80, at 15-17. 

Turning to relief, the district court determined that a permanent 

injunction under Section 13(b) was appropriate, including a permanent 

bar against advertising or selling “Protective Goods and Services” and 

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various compliance-monitoring measures.4 App. 323, 331-335; R. Doc. 

89, at 8, 16-20. The court noted the “egregious nature of Defendants’ 

conduct ... during a global pandemic” and concluded that even though 

appellants had altered some of their business practices since being sued 

by the FTC, there was still a “cognizable danger of recurrent violation.” 

App. 298; R. Doc. 80, at 18. The court also enjoined appellants from 

further violations of MITOR or misrepresentations about shipping 

times and refunds with respect to any product ordered by mail, the 

internet, or by telephone. App. 323-327; R. Doc. 89, at 8-12. 

The court also held that monetary relief under Section 19 was 

necessary to redress consumer injury resulting from the MITOR 

violations. Relying on this Court’s decision in FTC v. Security Rare Coin 

& Bullion Co., 931 F.2d 1312 (8th Cir. 1991), the court held that the 

FTC was “not required to prove individual injury and reliance.” App. 

301; R. Doc. 80, at 21. Because appellants made “materially misleading 

shipping promises” prior to the consumer’s purchase, the court could 

4 “Protective Goods and Services” is defined as: “any good or service 

designed, intended, or represented to detect, treat, prevent, mitigate, or 

cure COVID-19 or any other infection or disease, including, but not 

limited to, Personal Protective Equipment, hand sanitizer, and 

thermometers.” App. 321; R. Doc 89, at 6. 

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17 

“presume that consumers actually relied upon [those] shipping 

statements.” Id. Further, the pre-purchase misrepresentations that 

“induced the sale of PPE” meant that even customers who received their 

orders were entitled to refunds. Id. The court observed that although 

“the large number of consumers affected by [appellants’] deceptive trade 

practices creates a risk of uncertainty regarding the exact amount” of 

the refunds, appellants should “bear that risk.” App. 301-302; R. Doc. 

80, at 21-22 (cleaned up). 

To determine the refunds due, the district court relied on 

calculations prepared by an FTC data analyst, which in turn were 

based on a spreadsheet showing all invoices for PPE or COVID products 

sold in 2020 and explanatory testimony by the company’s controller. 

App. 128-129; R. Doc. 50-19, at 2-3 (¶¶ 8, 16, 17). For each invoice, the 

spreadsheet showed the amount paid and any refunds or chargebacks 

issued; most of the orders also contained shipping information. App. 

129-132; R. Doc. 50-19, at 4-7 (¶¶ 24-28, 33-34, 44-48, 52). The FTC’s 

data analyst calculated that the net revenue (total revenue less refunds) 

on PPE orders in 2020 that took longer than two days to ship (or for 

which there was no shipping information) was $14,651,185.42. App. 

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18 

302; R. Doc. 80, at 22. The court agreed that this was the appropriate 

amount of monetary relief and ordered appellants to pay that sum to 

the FTC to be used for a consumer redress fund. App. 303; R. Doc. 80, at 

23. Because the court recognized some customers may have been 

satisfied with their orders despite the delay, it did not order an 

automatic refund to every customer. Rather, the court required the FTC 

to “implement a plan that requires customers to make refund requests 

rather than receiving refunds outright.” Id. Any “unclaimed funds” will 

be returned to the appellants, less FTC costs administering the redress 

program. Id. 

Following further briefing, the district court rejected appellants’ 

objections to specific provisions of the contemplated final order. See

App. 305-315; R. Doc. 88. The court entered the Final Order and 

Judgment for Permanent Injunction and Monetary Relief on January 

31, 2023. App. 316-335; R. Doc. 89. This appeal followed. 

SUMMARY OF THE ARGUMENT 

1. The district court’s $14.6 million redress order was well within 

the court’s discretion to craft appropriate relief. The court properly 

applied a long-established presumption, adopted by this Court in FTC 

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19 

v. Security Rare Coin & Bullion Co., 931 F.2d 1312 (8th Cir. 1991), that 

consumers rely on and thus are harmed by widely disseminated, 

material misrepresentations. Appellants’ advertisements of protective 

goods “in stock” that would ship within “24-48 hours” or “7-10 business 

days” were untrue; desperate consumers plainly relied on them in 

deciding to purchase from appellants; and the claims were widely 

disseminated through online sources. The district court properly 

presumed consumer reliance on appellants’ false claims. 

Appellants failed to rebut the presumption with proof that 

individual consumers did not rely on such claims. To the contrary, the 

undisputed evidence showed that many consumers bought from 

American Screening specifically because it promised quick shipping. 

The district court also correctly held that under binding 

precedent, the FTC was not required to prove individualized injury. 

Where consumers relied on promises of fast shipping within a specified 

period, they were necessarily injured when the products did not arrive 

on time. Appellants’ practices were especially harmful given the 

pandemic, when product availability and shipping time was critical—

with many store shelves empty and online suppliers out of stock. 

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20 

Appellants contend that the court should not have treated so many 

orders as late, but undisputed evidence supported the court’s approach. 

And the court correctly held that appellants—who kept shoddy 

records—should bear the risk of any uncertainty on this point. 

The court properly ordered appellants to pay an amount sufficient 

to offer consumers full refunds. Courts long have recognized that using 

a baseline of full refunds is appropriate in FTC cases, and appellants 

failed to offer admissible evidence to show any other amount was 

proper. Furthermore, MITOR specifically requires sellers to offer 

refunds when they do not ship products on time. On this record, and 

given the nature of the products at issue, the court was not required to 

order product returns or deduct an amount for the products’ value. 

Moreover, the district court did not make refunds automatic; it required 

consumers to apply for refunds, ensuring that only those who are 

dissatisfied would get money back. 

2. The district court acted within its discretion when it enjoined 

appellants’ future sales of protective goods. District courts enjoy broad 

discretion to fashion effective equitable relief to prevent defendants 

from engaging in similar illegal practices in the future. Here, the court 

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21 

found that appellants had engaged in “egregious” misconduct by 

misrepresenting availability and shipping time of important PPE, 

exploiting consumer fear during a deadly pandemic. Appellants 

persisted with the misconduct even after consumer complaints poured 

in and the FTC gave notice of this lawsuit. The court reasonably 

concluded that appellants’ practices reflected an indifference to the law 

and required particularly strict fencing in. 

Nor is the injunction unduly burdensome. It prohibits conduct 

that constituted only a fraction of appellants’ pre-pandemic business, 

and does not bar them from selling other products. The court’s order 

was reasonably tailored to prevent similar future misconduct. 

3. The district court properly held Shawn Kilgarlin personally 

liable for American Screening’s violations. Undisputed evidence showed 

that she controlled the company and knew of its violations, which 

satisfies the test for personal liability. That evidence was bolstered by 

proper adverse inferences arising from repeated invocations of her Fifth 

Amendment right against self-incrimination when asked about her role. 

4. The district court did not abuse its discretion in refusing to 

consider appellants’ “Supplemental Statement of Facts.” The statement 

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22 

clearly violated local rules and the court was permitted to disregard it. 

Even so, any error would be harmless because the statement’s content 

was irrelevant to the summary judgment issues. The pandemic did not 

excuse appellants’ responsibility to make truthful claims and notify 

customers of delays. Appellants knew full well when they made their “in 

stock” and fast shipping claims that they could not timely fulfill the 

orders that predictably resulted. Appellants were not innocent victims 

of unforeseen circumstances but purposefully exploited the pandemic 

for their own financial gain—at the expense of consumers. 

ARGUMENT 

I. THE MONETARY AND INJUNCTIVE RELIEF ORDERED BY THE 

DISTRICT COURT WAS PROPER. 

Appellants do not challenge the district court’s grant of summary 

judgment as to either the MITOR or the FTC Act violations committed 

by American Screening and Ron Kilgarlin. Instead, they challenge two 

aspects of the relief ordered by the district court: the $14.6 million in 

consumer refunds, and the portion of the injunction permanently 

barring them from sales and marketing of protective goods or services. 

The district court’s choice of remedies is reviewed for abuse of 

discretion. Triple Five of Minn. v. Simon, 404 F.3d 1088, 1095 (8th Cir. 

Appellate Case: 23-1616 Page: 29 Date Filed: 09/07/2023 Entry ID: 5313822
23 

2005). The district court did not abuse its discretion either with respect 

to the award of monetary relief or the permanent ban on sales of 

protective goods and services. 

A. The District Court’s Monetary Relief Award Was 

Proper Under Section 19 of the FTC Act. 

Section 19 of the FTC Act provides that where a defendant has 

violated an FTC consumer protection rule like MITOR, the district court 

may “grant such relief as the court finds necessary to redress injury to 

consumers ... resulting from the rule violation[,]” including without 

limitation “the refund of money” but excluding any “exemplary or 

punitive damages.” 15 U.S.C. §§ 57b(a)(1), (b). Appellants focus on the 

word “necessary” (Br. 10-14), but ignore the words that immediately 

precede it: “such relief as the court finds necessary.” (Emphasis added.) 

This language gives the district court broad discretion to determine 

what kind of monetary or other relief is necessary to remedy consumer 

injury, depending on the facts and circumstances in a particular case. 

The district court did not abuse its discretion in concluding that up to 

$14.6 million in refunds was necessary to redress consumer injury from 

appellants’ MITOR violations. 

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24 

1. The District Court Properly Held That The 

FTC Was Not Required To Prove Individual 

Reliance Or Injury. 

This Court’s decision in Security Rare Coin squarely bars 

appellants’ argument that the FTC should have been required to show 

that individual consumers relied on appellants’ misrepresentations 

concerning shipping time. In that case, the defendants sold rare coins to 

consumers at inflated prices, fraudulently describing the coins as lowrisk investments. The district court ordered monetary relief to redress 

consumer injury. Like appellants here, the Security Rare Coin

defendants argued that the FTC was required to prove actual reliance 

on the false and misleading statements by each consumer to be 

reimbursed. 931 F.2d at 1315-16. The Court rejected this argument, 

holding that the FTC only had to show that “the misrepresentations or 

omissions were of a kind usually relied upon by reasonable and prudent 

persons, that they were widely disseminated, and that the injured 

consumers actually purchased the defendants’ products.” Id. at 1316. 

The Court explained that an FTC enforcement action “is not a private 

fraud action, but a government action brought to deter unfair and 

deceptive trade practices and obtain restitution on behalf of a large 

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25 

class of defrauded [consumers]” and that requiring “proof of subjective 

reliance by each individual consumer” would be “inconsistent with the 

statutory purpose” and “thwart and frustrate the public purposes of 

FTC action.” Id. 

Many other courts have reached the same conclusion and have 

applied the presumption of reliance to a variety of FTC cases involving 

harm to a large number of consumers. For example, in FTC v. Figgie 

Int’l, 994 F.2d 595 (9th Cir. 1993), the Ninth Circuit relied on Sec. Rare 

Coin and held that the FTC was not required to prove individual 

consumer reliance in a misrepresentation case where the agency sought 

relief under Section 19. The court held that “[a] presumption of actual 

reliance arises once the Commission has proved that the defendant 

made material misrepresentations, that they were widely disseminated, 

and that consumers purchased,” and that the burden then “shifts to the 

defendant to prove the absence of reliance.” Id. at 605-06. Courts have 

similarly applied a presumption of reliance where defendants’ 

misrepresentations violated a court order and the FTC sought consumer 

redress as a contempt sanction, as well as in other related contexts. See 

FTC v. Blue Hippo Funding, 762 F.3d 238, 243-46 (2nd Cir. 2014) (“To 

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26 

require proof of each individual consumer’s reliance on a defendant’s 

misrepresentations would be an onerous task with the potential to 

frustrate the purpose of the FTC’s statutory mandate.”); FTC v. 

Kuykendall, 371 F.3d 745, 765-66 (10th Cir. 2004) (applying 

presumption of reliance in contempt case); McGregor v. Chierico, 206 

F.3d 1378, 1388 (11th Cir. 2000) (same); CFPB v. Gordon, 819 F.3d 

1179, 1196 (9th Cir. 2016) (applying presumption of reliance in 

misrepresentation case brought by the CFPB). 

Applying these principles here, the district court properly found 

that the FTC was not required to prove consumer reliance by each 

individual consumer. Appellant’s representations that products were “in 

stock” and would ship either within 24-48 hours or 7-10 business days 

are statements “of a kind usually relied upon by reasonable and 

prudent persons,” particularly during a pandemic. Sec. Rare Coin, 931 

F. 2d at 1316. And the undisputed evidence showed that many 

consumers did in fact rely on the promises and purchased products from 

American Screening specifically because it promised quick shipping. See 

infra at 9; FTCApp, 11-13, 21, 79-82, 87; R. Doc. 55-1, at 11-13, 21, 79-

82, 87. Appellants do not dispute that the false statements were widely 

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27 

disseminated through internet search engine ads, their website, direct 

mail, and mass email promotions. Nor is there any dispute that tens of 

thousands of consumers purchased the products. App. 128; R. Doc. 50-

19, at 4. 

Accordingly, the district court properly presumed consumer 

reliance on appellants’ shipping promises. App. 301; R. Doc. 80, at 21. 

The burden then shifted to appellants to rebut that presumption by 

identifying individual consumers who did not rely on appellants’ 

misrepresentations. Appellants failed to do that. 

Appellants’ argument that the FTC was required to prove 

individualized injury fails for the same reasons. Where consumers were 

promised prompt shipping within a specified time frame, and they 

relied on that promise, they were necessarily injured when the products 

did not arrive on time. This was especially true in the early days of the 

pandemic, when many Americans were desperately trying to find PPE, 

only to find that store shelves were empty and the websites they usually 

ordered from were out of stock. In other words, what consumers wanted 

and what they were promised (and paid for) was PPE now. When 

appellants shipped PPE later, consumers did not get the benefit of their 

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28 

bargain, and that was an injury. To be sure, some consumers ultimately 

may have been satisfied with their purchases, notwithstanding the late 

shipment. The district court addressed that issue by requiring 

customers to make specific refund requests, rather than receiving 

refunds outright. App. 303; R. Doc. 80, at 23. In any event, given the 

presumption of reliance, the court did not err by holding that the FTC 

did not need to prove individualized injury. 

Requiring the FTC to prove individual consumer reliance and 

injury also would be improper here given the nature of the MITOR 

violations at issue. The underlying premise of MITOR is that consumers 

are entitled to (and often do) rely on a seller’s representations about 

shipping times, and that they are entitled to a refund if the seller does 

not timely ship the product.5 Here, appellants did not violate MITOR 

5 MITOR is the successor to the FTC’s Mail Order Merchandise Rule, 

40 Fed. Reg. 51582 (Nov. 5, 1975), issued to “ensure that sellers either 

shipped mail-ordered merchandise on time or offered cancellations and 

refunds for merchandise.” See 79 Fed. Reg. 55615-01, at *55615 (Sept. 

14, 2014). In amending the rule in 1993 to cover telephone sales, the 

Commission found that “shipment time is important to consumers” and 

that “reasonable consumers expect that merchandise . . . will be shipped 

in the time expressly represented or, if no time is specified, within 30 

days.” Id. at *55616. MITOR was issued to address complaints about 

“shipment and refund failures for Internet orders of merchandise” and 

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29 

simply by making misrepresentations about quick shipping times. They 

also separately violated MITOR when an order was delayed by failing to 

contact customers and giving them the option to either consent to the 

delayed shipping or cancel their orders and receive a refund, 16 C.F.R. 

§ 435.2(b)(1), and they violated the rule again by failing to deem late 

orders canceled and provide a refund without request when the 

products did not ship on time, id. § 435.2(c)(5). Consumers were injured 

because they were not given the refunds to which they were entitled 

under MITOR. 

2. The District Court Did Not Abuse Its 

Discretion By Treating Orders Shipped 

After Two Days As Late. 

Appellants also fail to show that the district court abused its 

discretion by including in the refund calculation all orders that were 

shipped more than two days after the order was placed. Appellants’ 

argument is that even though many customers were promised shipment 

within 24-48 hours, not all of them were, because the message on the 

website was updated sometime in March 2020 to promise shipping 

evidence showing that “deceptive and unfair practices remain 

prevalent” for such orders. Id. 

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30 

within “7-10 business days.” See App. 283; R. Doc. 80, at 3. Appellants 

also contend that new shipping promises were made “specific to each 

product” showing that the item was either “available to ship” right 

away or was “expected to ship between” two future dates. Br. 16-18. 

The problem with these arguments is that while the 24-48 hour 

shipping promise may not have been made with respect to all 

shipments, appellants have not established which of their multiple 

shipping representations applied to which order. Appellants’ 

representations were often inconsistent and confusing. For example, 

appellants point to a webpage captured on June 18, 2020. Br. 17; App. 

139, FTCApp2. 279-281; R. Doc. 51, at 9-12. The top of the webpage 

says “[P]roducts may ship 7-10 business days after order has been 

placed.” FTCApp2. 279; R. Doc. 51, at 9. But the “Shipping Policy” says 

“All shipping occurs 24-48 hours after processing, pending availability,” 

FTCApp2. 281; R. Doc. 51, at 12 —even though appellants contend they 

stopped making that claim three months earlier. For some products, 

there are ‘“expected to ship” dates, e.g., a surgical gown listed as 

expected to ship between June 1 and July 1. App. 139; R. Doc. 51, at 10. 

But many other items are claimed to be ready to ship with no expectedAppellate Case: 23-1616 Page: 37 Date Filed: 09/07/2023 Entry ID: 5313822
31 

to-ship dates even though the undisputed evidence is that American 

Screening did not know how much inventory it had in stock at this time. 

FTCApp. 244; R. Doc. 55-1, at 20 (¶ 188). Furthermore, the 24-48 hour 

promise was not made only on the website. Company representatives 

also reiterated the same promise in emails with customers, who in turn 

referenced the 48 hour shipping guarantee when corresponding with 

the company. See FTCApp. 235-36; R. Doc. 55-1, at 11-12 (¶¶ 76-82). 

Once the FTC showed that the 24-48 hour representation was 

widely disseminated, the district court was entitled to presume reliance 

on that representation, and the burden shifted to appellants to produce 

evidence that particular orders were not made in reliance on the 24-48 

hour representation. See, e.g., Figgie, 994 F.2d at 605-06. Appellants 

failed to rebut the presumption with affidavits or other evidence 

showing that the 24-48 hour shipping claim did not apply to particular 

shipments. Absent any objection to the inclusion of particular invoices, 

or alternative calculations of the proper refund amount, it was not an 

abuse of discretion for the district court to award the full $14.6 million. 

Appellants misplace their reliance on arguments that they lacked 

data to determine what specific representations were made to specific 

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32 

customers, which orders were shipped after the promised date, and 

even when they made their various shipping promises. Br. 18-20. 

MITOR specifically requires a seller to maintain “records or other 

documentary proof establishing its use of systems or procedures” to 

ensure compliance with the rule, and establishes a rebuttable 

presumption of non-compliance where the seller fails to maintain such 

records, 16 C.F.R. §§ 435.2(a)(4), (d), which appellants failed to do here. 

Along similar lines, as the district court noted (App. 301; R. Doc. 

80, at 21), courts have recognized that “[t]o the extent the large number 

of consumers affected by ... defendants’ deceptive trade practices 

creates a risk of uncertainty” about the amount of gross receipts 

defendants were paid, “the defendants must bear that risk.” 

Kuykendall, 371 F.3d at 765. This rule is rooted in “the most 

elementary conceptions of justice and public policy” which “require that 

the wrongdoer shall bear the risk of the uncertainty which his own 

wrong has created.” Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 

265 (1946). Appellants attempt to distinguish Bigelow by arguing that 

“uncertainty falls on Defendants only where Defendants’ misconduct 

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33 

renders more accurate data unavailable.” Br. 19. But that is exactly the 

situation here. 

The undisputed evidence shows that for much of 2020 appellants’ 

recordkeeping was a shambles and they had lost track of company 

inventory and shipping orders. American Screening had no “direct 

records” showing “what a customer ordered and what was shipped.” 

FTCApp. 247; R. Doc. 55-1, at 23 (¶ 241). From March to November 

2020, the company “did not know how much inventory it had in stock,” 

and “did not know whose orders were back ordered.” FTCApp. 244; R. 

Doc. 55-1, at 20 (¶¶ 188-89). Thus, although appellants complain that 

the “necessary” amount of redress remains “uncertain,” Br. 14, they 

must bear the risk of that uncertainty, which their own inadequate 

recordkeeping created. 

3. The District Court Was Not Required to 

Deduct the Value of the Products Shipped 

from the Refund Amount or to Order the 

Return of the Shipped Product. 

Also unavailing is appellants’ argument that the district court 

abused its discretion by ordering a full refund of the amounts 

consumers paid for PPE (i.e., total receipts less refunds). See Br. 21-23. 

Appellants first claim that the district court should have deducted the 

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34 

value of the PPE that customers eventually received, but they 

presented no evidence that the products had any significant value and 

made no effort to quantify any such value. See, e.g., FTCApp. 242; R. 

Doc. 52 at 19. 

Yet even if appellants had produced evidence of the late-shipped 

product’s value, a deduction would have been inappropriate given the 

nature of consumers’ injuries resulting from the MITOR violations at 

issue. Under MITOR, once it became clear that American Screening 

could not ship products within the advertised time frames, it had an 

obligation to contact customers and give them the option to either 

cancel their orders and receive a refund or consent to a later shipping 

date. 16 C.F.R. § 435.2(b)(1). Having failed to do that, American 

Screening had an obligation to deem such orders canceled and provide a 

prompt refund without request when the products did not ship on time. 

Id. § 435.2(c)(5). But instead of cancelling the orders and providing a 

refund as it was legally required to do, American Screening went ahead 

and shipped the orders late. Because appellants injured consumers by 

depriving them of the refunds to which MITOR entitled them, their 

injury could only be redressed by providing consumers with the full 

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35 

refunds MITOR provided for. Any deductions from that amount would 

effectively reward American Screening for its failure to comply with the 

cancel-and-refund provisions.6

 Further, full refunds would be an appropriate remedy even if 

there were no MITOR violations here. When the FTC establishes a 

presumption of reliance, a court can “use the defendants’ gross receipts 

as a baseline for calculating damages at the first step of the burdenshifting framework.” FTC v. Moses, 913 F.3d 297, 310-11 (2d Cir. 2019); 

see also Kuykendall, 371 F.3d at 764-65 (same); FTC v. Commerce 

Planet, 815 F.3d 593, 603 (9th Cir. 2016) (using defendants’ net 

revenues—payments less refunds and chargebacks—as the 

compensatory baseline); FTC v. Febre, 128 F.3d 530, 535-36 (7th Cir. 

1997) (“consumers’ net payments” was the compensatory baseline). The 

FTC showed—through its data analyst’s declaration based on 

6 Awarding full refunds did not result in a “windfall” to consumers, as 

appellants suggest. Br. 21-22. American Screening chose to send out 

merchandise after it was legally required to cancel the orders. Under 39 

U.S.C. § 3009, any such merchandise “may be treated as a gift by the 

recipient, who shall have the right to retain, use, or dispose of it in any 

manner he sees fit without any obligation whatsoever to the sender.” Id. 

§ 3009(b). Sending the merchandise after the order was deemed 

cancelled did not obviate American Screening’s refund obligations under 

MITOR. 

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36 

appellants’ business records, App.132-33; R. Doc. 50-19, at 8-9 (¶¶ 53-

57)—that appellants’ net revenue derived from its 2020 PPE sales was 

the appropriate compensatory baseline. 

The burden then shifted to the appellants to show that the net 

revenue figure was inaccurate. But they failed to proffer any 

admissible evidence to rebut or offset the net revenue amount they 

received from consumers including (as explained above) as to the value 

of PPE received. Instead, they submitted only unsupported “Revenue, 

Costs and Refunds” data, see App. 258; R. Doc. 53, at 39, which lacked 

any evidentiary basis, and as part of appellants’ supplemental 

statement was rejected by the district court for violating the local rules. 

See App. 282 n.2; R. Doc.80 at 2 n.2. Absent any admissible, reliable 

rebuttal evidence, the district court certainly did not abuse its 

discretion in ordering a refund of the full amounts paid by consumers. 

See Gordon, 819 F.3d at 1194-1196; Moses, 913 F.3d at 310-311.7 

7 Appellants urge the Court to adopt the reasoning of FTC v. Noland, 

No. CV-20-00047, 2021 U.S. Dist. LEXIS 226238 (D. Ariz. Nov. 23, 

2021), which required consideration of the value of late-shipped 

products where its MITOR violations occurred after the consumer made 

her purchase. See Br. 22. Noland does not help appellants because, as 

the scheme’s operators, they were in the best position to provide such 

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37 

Even if appellants had shown some value in the late-shipped PPE, 

other courts of appeals have rejected the argument that compensatory 

awards must be reduced by the value of the products obtained. The 

Tenth Circuit has held that in calculating contempt sanctions for 

magazine sales that violated an injunction, “the district court need not 

offset the value of any product the defrauded consumers received.” 

Kuykendall, 371 F.3d at 766. The Eleventh Circuit likewise affirmed a 

compensatory contempt award for fraudulent print toner sales in the 

amount of gross revenue without deducting the value of the toner. 

McGregor, 206 F.3d at 1388-89. Whether any amounts should be 

deducted from the total sales figure depends on the circumstances of the 

case and defendants’ factual showing, and district courts have broad 

discretion in ordering such relief. See Sec. Rare Coin, 931 F.2d at 1316. 

Appellants unpersuasively attempt to distinguish other FTC cases 

where courts have awarded monetary relief equal to full refunds. Br. 

product values, but failed to do so. Further, the Noland court later 

distinguished that case from one which – just like here – involved “prepurchase misrepresentations about whether the products were in stock 

and would be shipped quickly” which induced sales and thus allowed 

full refunds as an appropriate remedy. FTC v. Noland, No. CV-20-

00047, 2023 WL 3372517, at *54 (D. Ariz. May 11, 2023) (cleaned up). 

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38 

26-28. In the pandemic context of appellants’ PPE sales, shipping time 

was critical to purchasing consumers. FTCApp. 235-237, 245; R. Doc. 

55-1, at 11-13, 21 (¶¶ 78-82, 87, 93, 217). Appellants’ 

misrepresentations thus tainted the transaction just as much as a 

misrepresentation about the product’s “qualities” (Br. 26-28); i.e., the 

product’s effectiveness or nature. See Figgie, 994 F.2d at 606; 

Kuykendall, 371 F.3d at 766; McGregor, 206 F.3d at 1388-89. 

Finally, appellants’ bare assertion that the district court should 

have ordered the return of PPE before a consumer could receive a 

refund, Br. 9, 21, 28, fails both because it was waived and it lacks merit. 

Appellants waived this contention by failing to raise and explain it in 

the district court. See N. Bottling Co. v. Pepsico, Inc., 5 F.4th 917, 922 

(8th Cir. 2021). The district court thus had no reason to opine on it. 

Appellants also waived the contention on appeal because it was 

conclusory, raised in passing, and lacked an explanation. See, e.g., 

CFPB v. Gordon, 819 F.3d 1179, 1194 (9th Cir. 2016). 

Even if the argument is considered, appellants provide no reason 

why returns are necessary before a consumer can obtain a refund. 

District courts have the discretion to order return of property as a 

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39 

condition for obtaining a refund under Section 19. See, e.g. Figgie, 994 

F.2d at 606. But Figgie does not hold that returns are required in all 

cases, and it involved very different facts from this case. The devices at 

issue in Figgie were relatively costly home heat detectors that sold for 

$170 apiece (about $457-$635 in 2023 dollars, depending on year of 

sale) and retained meaningful value notwithstanding the Figgie 

defendants’ misrepresentations about effectiveness during the sales 

process. 994 F.2d at 601, 606. In contrast, most of the PPE products 

American Screening sold were low-priced consumable items such as 

disposable wipes, masks, or bottles of hand sanitizer that American 

Screening had promised to ship expeditiously. In these circumstances, 

the district court did not have to require product returns as a condition 

for receiving refunds. 

B. The District Court Properly Enjoined Appellants 

From Future Sales of Protective Goods and 

Services. 

Appellants fail to show that the district court overstepped its 

authority under Section 13(b) of the FTC Act by permanently barring 

them from sales and marketing of protective goods and services. See Br. 

28-33. It is well-settled that “those caught violating the [FTC] Act ... 

Appellate Case: 23-1616 Page: 46 Date Filed: 09/07/2023 Entry ID: 5313822
40 

must expect some fencing in.” FTC v. Colgate-Palmolive Co., 380 U.S. 

374, 394-395 (1965) (citation omitted). 

Injunctions must be framed “broadly enough” so they prohibit not 

just the conduct giving rise to the violations in the case but also that 

necessary “to prevent respondents from engaging in similarly illegal 

practices” in the future. Id. Even where the violation has ceased, an 

injunction is appropriate where “there exists some cognizable danger of 

recurrent violation.” United States v. W.T. Grant Co., 345 U.S. 629, 633 

(1953). Moreover, district courts enjoy “substantial flexibility” in 

fashioning effective equitable relief. Brown v. Plata, 563 U.S. 493, 538 

(2011) (cleaned up). “In shaping equity decrees, the trial court is vested 

with broad discretionary power” such that “appellate review is 

correspondingly narrow.” Americans United for Separation of Church & 

State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 426 (8th Cir. 

2007) (citing Lemon v. Kurtzman, 411 U.S. 192, 200 (1973)). 

Here, the district court determined that appellants engaged in 

“egregious” misconduct by making “misrepresentations regarding 

shipping and availability of PPE during a global pandemic.” App. 298; 

R. Doc. 80, at 18. Appellants took advantage of consumers’ panic during 

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41 

the early days of the pandemic to vigorously advertise PPE products as 

“in stock” and “available to ship” when in fact the products were 

backordered for months. For months, appellants had no idea what was 

in their inventory and had no basis to make these claims, but they 

continued to collect payments upfront for orders that were not shipped 

for weeks or even months. Appellants then failed to satisfy their 

obligations to contact consumers about the shipping delays and offer 

refunds, and in many cases they further deceived customers through 

SKU swaps, sending consumers products different than what had been 

ordered. FTCApp. 247; R. Doc. 55-1, at 23 (¶¶ 235, 236). These 

violations were systemic and continued for months after notice of the 

FTC’s lawsuit. FTCApp. 274; R. Doc. 55-1, at 50 (¶¶ 577-78). 

Appellants miss the mark in arguing that their conduct is less 

egregious than other cases in which district courts have imposed 

permanent bans. Br. 30-31. The district court could reasonably conclude 

that preying on vulnerable consumers in the midst of a deadly 

pandemic demonstrated a general disregard for legal guardrails and 

called for especially rigorous fencing-in. That is especially so where, as 

the district court recognized, the PPE products being sold were needed 

Appellate Case: 23-1616 Page: 48 Date Filed: 09/07/2023 Entry ID: 5313822
42 

“to maintain [consumers’] own lives and livelihood,” App. 293; R. Doc. 

80, at 13, and where appellants persisted with their misconduct despite 

receiving over 500 consumer complaints per day in 2020. App. 285-286; 

R. Doc. 80, at 5-6. 

For the same reasons, appellants are not aided by their argument 

that other provisions of the injunction, such as the prohibition on 

MITOR violations for the sales of any product, are sufficient to deter 

future violations. Br. 29-30. As noted, the district court found that 

appellants’ practices—inducing upfront PPE sales with bald misleading 

claims of quick shipping, regardless of product availability—were 

sufficiently egregious to warrant banning future sales of protective 

goods and services. The court could reasonably conclude that simply 

prohibiting appellants from future MITOR violations – which were 

already unlawful – was insufficient to deter future violations. “A district 

court has a wide range of discretion in framing an injunction in terms it 

deems reasonable to prevent wrongful conduct.” Soltex Polymer Corp. v. 

Fortex Indus., Inc., 832 F.2d 1325, 1329 (2d Cir. 1987) (cleaned up). 

Finally, appellants fail to show that the sales ban is unduly 

burdensome for their business. The ban is limited to “Protective Goods 

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43 

and Services,” “including, but not limited to, [PPE], hand sanitizer, and 

thermometers.” App. 321; R. Doc 89, at 6. Before the pandemic such 

sales were only a small part of American Screening’s business. As 

appellants concede, the injunction does not prohibit them from selling 

their other products. Br. 32. The district court considered the level of 

burden but concluded that the injunction would not put appellants “out 

of business.” App. 298; R. Doc. 80 at 18.8 The district court’s injunction 

was reasonably tailored to prevent future misconduct very closely 

related to the unlawful practices appellants engaged in, and this Court 

should not second guess that judgment. 

II. THE DISTRICT COURT PROPERLY HELD SHAWN KILGARLIN 

PERSONALLY LIABLE. 

Appellants do not dispute the district court’s determination that 

Ron Kilgarlin was personally liable for American Screening’s violations, 

but do challenge the finding of personal liability as to Shawn Kilgarlin. 

Br. 33-40. This issue is subject to de novo review because it goes to the 

8 American Screening notes that it has filed for bankruptcy, but does 

not assert the bankruptcy was caused by the injunction against selling 

protective goods or services. Br. 13 n.3. Also, the company’s bankruptcy 

petition seeks its reorganization under Chapter 11 so presumably it 

intends to remain a viable business. 

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44 

district court’s liability determination on summary judgment. See e.g.

Kaliannan v. Hoong Liang, 2 F.4th 727, 736 (8th Cir. 2021). A party 

opposing summary judgment “may not rely on allegations or denials,” 

but rather “must substantiate [her] allegations with sufficient probative 

evidence that would permit a finding in [her] favor on more than mere 

speculation or conjecture.” Carter v. Pulaski Cnty. Special Sch. Dist., 

956 F.3d 1055, 1059 (8th Cir. 2020) (cleaned up). The district court 

properly found no genuine dispute of fact that Ms. Kilgarlin had 

sufficient control over American Screening and knowledge of its 

violations to render her personally liable. 

Individuals are liable for injunctive and monetary relief for 

corporate violations of the FTC Act if they (1) participated directly in 

the practices or acts or had authority to control them and (2) had some 

knowledge of the wrongful practices. E.g., FTC v. Bay Area Bus. 

Council, Inc., 423 F.3d 627, 636 (7th Cir. 2005); FTC v. Gem Merch. 

Corp., 87 F.3d 466, 470 (11th Cir. 1996). As to knowledge, Ms. Kilgarlin 

does not challenge the district court’s determination that “no reasonable 

jury could conclude [she] was unaware of the wrongful practices.” App. 

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45 

297; R. Doc. 80, at 17.9 She challenges only the district court’s 

determination that she had authority to control those practices.10 The 

district court properly concluded that she did have such authority. 

Authority to control can be evidenced by active involvement in 

business affairs and the making of corporate policy, including assuming 

the duties of a corporate officer. E.g., Moses, 913 F.3d at 307. Here, the 

undisputed evidence showed that Ms. Kilgarlin had authority to control 

American Screening’s wrongful practices, both by virtue of her job title 

and her actual duties. She served as Quality and ISO Manager, and 

also held herself out in 2020 as the company’s Chief Operating Officer. 

App. 296; R. Doc. 80, at 16. Specifically, her email signature identified 

her as COO, her job description on American Screening’s employee list 

9 Ms. Kilgarlin admitted that American Screening violated MITOR, 

and was well aware of American Screening’s PPE inventory problems, 

thousands of backorders, chargebacks, and the “overwhelming” number 

of consumer complaints regarding delayed and missing shipments. 

FTCApp. 261-262, 266-267, 270-271; R. Doc. 55-1, at 37-38, 42-43, 46-47 

(⁋⁋ 401, 407-14, 467-79, 496, 503).

10 Undisputed evidence also establishes that Ms. Kilgarlin directly 

participated in the wrongful acts, but the district court’s liability 

determination was based on authority to control rather than direct 

participation. 

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46 

identified her as COO, and Ron Kilgarlin referred to her as COO. 

FTCApp. 262; R. Doc. 55-1, at 38 (¶¶ 424-26). 

 Ms. Kilgarlin’s argument that she was never an owner of 

American Screening, Br. 35, is irrelevant because the applicable 

individual liability test turns not on ownership but on whether she had 

authority to control the wrongful practices. She also tries to cast doubt 

on whether she really served as COO, Br. 36, but the undisputed 

evidence shows that she held herself out as the COO. App. 296; R. Doc. 

80, at 16. She is not now in a position to deny that she held that 

position, having chosen to remain silent when asked about the COO 

title at deposition. In any event, whether or not Ms. Kilgarlin formally 

held the title of COO, the undisputed evidence of her job functions 

clearly demonstrates her authority to control. 

Undisputed evidence also showed that Ms. Kilgarlin had a 

significant operational role in American Screening, which included 

helping Ron Kilgarlin run the company, meeting with the company’s 

controller to discuss “operational issues” like “inventory numbers” and 

“process review,” and “ensuring that processes are being performed by 

people in their respective areas.” FTCApp. 262-263; R. Doc. 55-1, at 38-

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47 

39 (⁋⁋ 430-432). Ms. Kilgarlin directed changes to the company’s 

website, had authority to approve cancellations, refunds, and purchases 

for inventory, supervised the group of employees that was attempting to 

find new suppliers during the COVID-19 pandemic, and helped oversee 

“personnel in customer service and quality control” and “responses to 

consumer complaints and quality control.” FTCApp. 263-264; R. Doc. 

55-1, at 39-40 (⁋⁋ 433-443, 448). She was also directly involved in 

American Screening’s MITOR violations, including by directing 

employees to take product orders, to stop cancelling orders, to refuse 

refund requests, and to respond to BBB complaints. FTCApp. 264-265; 

R. Doc. 55-1, at 40-41 (⁋⁋ 453, 455-463). 

Thus, extensive undisputed record evidence clearly establishes 

that she was “actively involved with business matters and corporate 

policy,” and had (at the very least) an important managerial role at 

American Screening, which demonstrates her authority to control the 

wrongful practices. See App. 296-297; R. Doc. 80, at 16-17. Her control 

and involvement in corporate operations equals or exceeds that found in 

other FTC cases which have imposed individual liability. See, e.g., FTC 

v. Elegant Solutions, Inc., No. 20-55766, 2022 WL 2072735, at *2 (9th 

Appellate Case: 23-1616 Page: 54 Date Filed: 09/07/2023 Entry ID: 5313822
48 

Cir. June 9, 2022) (affirming personal liability for corporate officer who 

held herself out as the director of operations, made decisions about 

payments to lenders, worked closely with the company owner, and was 

aware of customer complaints including passing one to the owner). 

Further, as the district court properly held, the conclusion that 

Ms. Kilgarlin had the authority to control the company is bolstered by 

adverse inferences which may be drawn from her repeated Fifth 

Amendment invocations. See App. 296; R. Doc. 80, at 16. For example, 

Ms. Kilgarlin invoked her Fifth Amendment right against selfincrimination when asked about her COO title and when she held that 

position, FTCApp. 262, R. Doc. 55-1, at 38 (¶ 427). She did so again 

when asked about her specific tasks at the company. FTCApp. 263-264, 

266-271; R. Doc. 55-1 at 39-40, 42-47 (¶¶ 442-444, 464, 467, 475-479, 

481-494, 497, 499-502, 504). 

 It is well established that “the Fifth Amendment does not forbid 

adverse inferences against parties to civil actions when they refuse to 

testify in response to probative evidence offered against them.” Baxter v. 

Palmigiano, 425 U.S. 308, 318 (1976). To be sure, “such adverse 

inference can only be drawn when independent evidence exists of the 

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49 

fact to which the party refuses to answer.” Doe v. Glanzer, 232 F.3d 

1258, 1264 (9th Cir. 2000); see also SEC v. Colello, 139 F.3d 674, 678 

(9th Cir.1998) (ruling was proper where it was based on evidence 

presented by SEC combined with adverse inference drawn from the 

defendant’s silence). Here, as the district court held, the FTC presented 

such evidence, and an adverse inference could properly be drawn. See 

App. 296; R. Doc. 80, at 16. 

Ms. Kilgarlin is wrong in claiming that adverse inferences are 

improper at the summary judgment stage. Br. 38. Courts recognize that 

“the claim of [Fifth Amendment] privilege will not prevent an adverse 

finding or even summary judgment if the litigant does not present 

sufficient evidence to satisfy the usual evidentiary burdens in the 

litigation.” Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 98 

(2d Cir. 2012) (emphasis added). In re Caucus Distributors, Inc., 83 B.R. 

921 (Bankr. E.D. Va. 1988), Br. 38, is not to the contrary. The court 

there observed that a court “may not draw [adverse] inferences to fill in 

the gaps of the movant’s case.” Id. at 926. Here, the district court noted 

that the FTC had presented undisputed evidence to show Ms. 

Kilgarlin’s control. The adverse inferences merely corroborated what 

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50 

the evidence already showed. But in any case, even if the use of an 

adverse inference was improper, the error was harmless because the 

undisputed facts clearly show control even without such inferences. 

III. THE DISTRICT COURT PROPERLY DECLINED TO CONSIDER 

APPELLANTS’ SUPPLEMENTAL STATEMENT OF FACTS IN 

ACCORDANCE WITH LOCAL RULES.

The district court’s refusal to consider appellants’ “Supplemental 

Statement of Facts” (App. 246-258; R. Doc. No. 53, at 27-39) was based 

on its application of its local rules and is reviewed for abuse of 

discretion. See App. 282 n.2; R. Doc. 80, at 2 n.2; N.W. Bank & Trust Co. 

v. First Ill. Nat’l Bank, 354 F.3d 721, 725 (8th Cir. 2003). The court did 

not abuse its discretion in declining to consider this material, but even 

if it had the error would be harmless because, as the court noted, the 

material was irrelevant. 

The district court’s Local Rule 4.01(E), which is similar to local 

rules in many other district courts, controls the way parties must 

establish or dispute the facts relevant to a summary judgment motion. 

The rule requires the moving party to submit a “Statement of 

Uncontroverted Material Facts” which must “set forth each relevant 

fact in a separately numbered paragraph stating how each fact is 

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51 

established by the record, with appropriate supporting citation(s).” E.D. 

Mo. L.R. 4.01(E). The opposing party must then submit a “Response to 

Statement of Material Facts,” which must “set forth each relevant fact 

as to which the party contends a genuine issue exists,” with “specific 

citation(s) to the record, where available, upon which the opposing 

party relies.” Id. The Response must also “note for all disputed facts the 

paragraph number from the moving party’s Statement of 

Uncontroverted Material Facts.” Id. The rule provides that “All matters 

set forth in the moving party’s Statement of Uncontroverted Material 

Facts shall be deemed admitted for purposes of summary judgment 

unless specifically controverted by the opposing party.” Id.

As this Court has explained, the obvious purpose of such rules is 

to “distill to a manageable volume the matters that must be reviewed by 

a court undertaking to decide whether a genuine issue of fact exists for 

trial.” Jones v. UPS, 461 F.3d 982, 990 (8th Cir. 2006) (district court did 

not abuse its discretion by disregarding non-movant’s factual statement 

which failed to comply with local rules). “With both the movant’s list of 

uncontroverted facts and the non-movant’s list of controverted facts and 

accompanying cross-references, including specific citations to the 

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52 

record, the court can focus its review on materials that may 

demonstrate a disputed issue for trial.” Id.; see also N.W. Bank, 354 

F.3d at 725 (similar local rule for another court in this Circuit “exists to 

prevent a district court from engaging in the proverbial search for a 

needle in the haystack.”); Febre, 128 F.3d at 535–36) (no abuse of 

discretion in awarding monetary relief under similar local Illinois court 

rules based on the FTC’s record-supported statement of facts where 

defendants failed to properly dispute the facts). 

In this case, appellants appended a “Supplemental Statement of 

Facts” to the responsive statement required by the rule. The district 

court declined to consider the “Supplemental Statement” because the 

local rule “does not contemplate a separate statement of facts by the 

opposing party.” App. 282 n.2; R. Doc. 80, at 2 n.2. And even if the 

Supplemental Statement was intended as a “further response to the 

FTC’s statement,” the district court found it “improper” because “(1) It 

does not note the paragraph number to which it responds, as required 

by Rule 4.01; and (2) It contains numerous irrelevant facts pertaining to 

the progression of the COVID-19 pandemic.” Id.

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53 

The district court did not abuse its discretion in making these 

determinations. It simply applied the terms of the local rule. The court’s 

conclusion that the rule does not contemplate a separate statement of 

facts by the opposing party is correct and consistent with other 

decisions from within the same district. See Thompson v. Normandy 

Sch. Collaborative, No. 4:19-CV-03220-MTS, 2021 WL 3286810, at *1 

(E.D. Mo. Aug. 2, 2021) (declining to consider supplemental statement 

submitted by party opposing summary judgment). That the 

supplemental statement did not note the paragraph numbers of the 

FTC statement to which it responded provides a further justification for 

the court’s decision. “[I]t is the parties who know the case better than 

the judge,” N.W. Bank, 354 F.3d at 725, and the court should not have 

to guess what part of the moving party’s statement a particular fact is 

intended to respond to. 

In any event, as the district court found, the “facts” set forth in the 

Supplemental Statement were irrelevant to the issues presented by the 

summary judgment motion. Appellants argue that these facts related to 

the “unprecedented and overwhelming challenges” they faced in 

operating their businesses during the early days of the pandemic. Br. 

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54 

41. But appellants do not cite any legal authority as to why these 

circumstances would excuse their misrepresentations and failures to 

comply with MITOR. As the district court recognized, neither MITOR 

nor the FTC Act contains an exigent circumstances exception. See App. 

292-293; R. Doc. 80, at 12-13 (“[T]he law provides no exceptions for 

sellers who do their ‘best’ during pandemics, particularly when 

customers paid upfront for PPE they need to maintain their own lives 

and livelihoods.”).11 The pandemic did not excuse appellants’ 

responsibility to give their customers reasonable notice about shipping 

delays. American Screening exploited the pandemic for its own financial 

gain—at great cost to consumers. Appellants now must face the 

consequences of that decision. 

11 Other courts likewise have recognized that pandemic conditions did 

not excuse sellers’ unreasonable shipping time claims made in violation 

of MITOR and the FTC Act. See FTC v. QYK Brands, LLC, No. SACV 

20-1431 PSG (KESx), 2022 WL 1090257 (C.D. Cal. Apr. 6, 2022); FTC v. 

Romero, No. 5:21-CV-343-BJD-PRL, 2023 WL 2445339 (M.D. Fla. Feb. 

27, 2023); FTC v. Zaappaaz, LLC., No. 4:20-CV-2717, 2023 WL 5020618 

(S.D. Tex. June 9, 2023), report and recommendation adopted sub nom. 

FTC v. Zaappaaz, LLC, No. 4:20-CV-02717, 2023 WL 5018433 (S.D. 

Tex. Aug. 3, 2023). 

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55 

CONCLUSION 

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

affirmed. 

Respectfully submitted, 

SAMUEL LEVINE ANISHA S. DASGUPTA

Director General Counsel 

ANNE COLLESANO MARIEL GOETZ

Attorney Acting Director of Litigation

BUREAU OF CONSUMER PROTECTION 

 /s/ Michael D. Bergman 

MICHAEL D. BERGMAN

Attorney 

FEDERAL TRADE COMMISSION

600 Pennsylvania Avenue, N.W. 

Washington, DC 20580 

(202) 326-3184 

September 6, 2023 mbergman@ftc.gov 

Appellate Case: 23-1616 Page: 62 Date Filed: 09/07/2023 Entry ID: 5313822 
CERTIFICATE OF COMPLIANCE 

I certify that the foregoing “Corrected Answering Brief for the 

Federal Trade Commission” complies with the volume limitations of 

Fed. R. App. P. 32(a)(7)(B) because it contains 11,015 words, excluding 

the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I 

certify further that it complies with the typeface and type style 

requirements of Fed. R. App. P. 32(a)(5)-(6) because it was prepared 

using Microsoft Word 2010 in 14 point Century Schoolbook. 

September 6, 2023 /s/ Michael D. Bergman 

 MICHAEL D. BERGMAN

 Attorney 

 FEDERAL TRADE COMMISSION

 600 PENNSYLVANIA AVENUE, N.W. 

 WASHINGTON, D.C. 20580 

Appellate Case: 23-1616 Page: 63 Date Filed: 09/07/2023 Entry ID: 5313822 
CERTIFICATES OF SERVICE AND ELECTRONIC VIRUS SCAN

I certify that the foregoing “Corrected Answering Brief for the 

Federal Trade Commission” has been filed using the Court’s CM/ECF 

system, and that all parties have consented to electronic service via that 

system, and will thus be served via the Court’s CM/ECF system. 

In addition, pursuant to 8th Cir. Rule 28A(h)(2), the electronic 

version of this brief is in PDF format and has been scanned for 

computer viruses and found to be virus-free. 

September 6, 2023 /s/ Michael D. Bergman 

 MICHAEL D. BERGMAN

 Attorney 

 FEDERAL TRADE COMMISSION

 600 PENNSYLVANIA AVENUE, N.W. 

 WASHINGTON, D.C. 20580 

Appellate Case: 23-1616 Page: 64 Date Filed: 09/07/2023 Entry ID: 5313822