In the

United States Court of Appeals

For the Seventh Circuit

Nos. 08-1312 and 08-1586

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Cross-Appellant,

v.

WILLIAM J. BENSON,

Defendant-Appellant,

Cross-Appellee.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 7403—Samuel Der-Yeghiayan, Judge.

ARGUED OCTOBER 28, 2008—DECIDED APRIL 6, 2009

Before BAUER, RIPPLE and EVANS, Circuit Judges.

BAUER, Circuit Judge. The district court enjoined

William J. Benson, a “tax protester,” from promoting,

organizing, or selling his “Reliance Defense Package” and

“16th Amendment Reliance Package,” which were based

on the false premise that customers could stop paying

federal income taxes and avoid or defeat prosecution by
2 Nos. 08-1312 and 08-1586

relying on the materials in the Packages. However, the

court denied the government’s request to require

Benson to divulge a list of his customers. We affirm the

injunction, but reverse as to the customer list, and

remand for further appropriate proceedings.

I. BACKGROUND

Benson wrote a book titled, The Law That Never Was, in

which he claims that the Sixteenth Amendment to the

United States Constitution was never properly ratified.

Benson packaged his book with several excerpts from

state legislative histories and records from the national

archives as well as court cases and other materials to

create what he called the “Reliance Defense Package.” He

advertised the Package and its component parts for

sale on his website, www.thelawthatneverwas.com. The

entire Package was offered for sale for $3500. Benson

branded a similar set of materials as the “16th Amendment Reliance Package,” which was promoted and

offered for sale on the website of the Free Enterprise

Society.

The details of Benson’s promotional claims will be

more thoroughly discussed below, but they can be boiled

down to two theories. Benson’s first and primary theory

was that the Sixteenth Amendment was never properly

ratified because several states intentionally attempted to

modify the language of the proposed amendment and so

did not ratify the actual amendment proposed by Congress. Without the Sixteenth Amendment, Benson explained, the federal income tax system is unconstitutional
Nos. 08-1312 and 08-1586 3

The injunction reads in part: 1

The defendant, William J. Benson, individually and doing

business as Constitutional Research Associates, and anyone

(continued...)

according to the Supreme Court. See Pollock v. Farmers’ Loan

& Trust Co., 157 U.S. 429 (1895). Benson stated that he

does not file an income tax return and that his customers

may choose to do the same.

Benson’s second theory, which was alluded to on

Benson’s website and more thoroughly discussed in the

Reliance Defense Package itself, was that an individual

could not be successfully prosecuted if he truly believed

he was not required to pay income taxes. Benson claimed

that the Supreme Court held in Cheek v. United States,

498 U.S. 192 (1991) “that when a defendant had a goodfaith belief he was not required to file, he must be permitted to present that belief to the jury.” Benson also cited

United States v. Powell, 955 F.2d 1206 (9th Cir. 1991) for the

principle that the defendants’ conviction for failing to file

tax returns “could not be sustained if the [defendants]

sincerely believed they were not required to

file—whatever their foundation for that belief.” And

Benson promised that the Reliance Defense Package

would allow customers to develop that sincere belief.

At the government’s request, the district court granted

summary judgement and issued an injunction against

Benson; however the district court denied the part of

the requested injunction that would have required

Benson to turn over his customer list.1
4 Nos. 08-1312 and 08-1586

(...continued) 1

in active concert or participation with him, are permanently

enjoined from:

(a) promoting, organizing or selling the “Reliance

Defense Package” or “16 Amendment Reliance Pack- th

age,” which are abusive tax shelters, plans, or arrangements that advise or assist customers to attempt to

evade the assessment or collection of their correct

federal tax;

(b) promoting, organizing or selling (or helping others

to promote, organize, or sell) any other tax shelter, plan,

or arrangement that incites or assists others to attempt

to violate the internal revenue laws or unlawfully

evade the assessment or collection of their federal tax

liabilities or unlawfully claim improper tax refunds;

(c) making or furnishing (in connection with organizing, promoting, or selling any plan or arrangement)

false statements about the excludability of any income

or the securing of any other tax benefit by reason of

participating in the plan or arrangement;

(d) engaging in any other activity subject to penalty

under the Internal Revenue Code; and

(e) engaging in any other conduct that interferes with

the administration or enforcement of the internal

revenue laws.

II. DISCUSSION

On appeal, Benson claims that he did not violate the

statute the district court relied on to grant the injunction.

He also argues that the injunction violates his First Amendment rights. The government counters that there was
Nos. 08-1312 and 08-1586 5

ample statutory and constitutional support for the injunction. The government’s cross-claim contends that the

district court erred by not requiring Benson to produce a

list of his customers. We review a district court’s grant

of summary judgment de novo and its decision to grant

an injunction for abuse of discretion. United States v.

Raymond, 228 F.3d 804, 810 (7th Cir. 2000); United States

v. Kaun, 827 F.2d 1144, 1148 (7th Cir. 1987).

A. Statutory Authority for the Injunction

A district court is authorized to enter an injunction

against any person if it finds “(1) that the person has

engaged in any [conduct subject to penalty under 26 U.S.C.

§ 6700], and (2) that injunctive relief is appropriate

to prevent recurrence of such conduct.” 26 U.S.C. § 7408(b).

1. Violation of 26 U.S.C. § 6700

Section 6700 imposes a penalty on any person who

(1) organizes (or assists in the organization of) any plan

or arrangement, or participates (directly or indirectly) in

the sale of any interest in an entity or plan or arrangement, and (2) in connection with such organization or

sale, makes or furnishes a statement with respect to the

allowability of any deduction or credit, the excludability

or any income, or the securing of any other tax benefit

by reason of holding an interest in the entity or participating in the plan or arrangement (3) which the person

knows or has reason to know is false or fraudulent (4) as

to any material matter. 26 U.S.C. § 6700(a).
6 Nos. 08-1312 and 08-1586

Benson claims that he was simply urging political action

and was not promoting any plan because he did not

engage in affirmative conduct such as offering to help

prepare trusts, false W-4 forms, false income tax returns,

letters to harass the IRS, claims for tax refunds, etc., as

some tax protestors have in the past. Benson is wrong,

both legally and factually.

First, the definition of a plan for purposes of § 6700 is

broad. Raymond, 228 F.3d at 811 (“any ‘plan or arrangement’ having some connection to taxes” (citing Kaun, 827

F.2d at 1147)). Courts have not been hesitant in finding

tax protesters’ activities to qualify as plans. Kaun, 827

F.2d at 1148 (“words ‘any other plan or arrangement’ are

clearly broad enough to include a tax protester group”);

Raymond, 228 F.3d at 811-12 (sale of program that told

customers they could legally refuse to pay federal

income tax was sale of an interest in a plan under § 6700);

United States v. Schulz, 529 F. Supp. 2d 341, 348 (N.D.N.Y.

2007) (instruction guide on stopping employer withholdings was plan or arrangement), aff’d, 517 F.3d 606, 607 (2d

Cir. 2008). Benson’s plan was simpler than some prior

tax protester schemes, but its purpose was the same—to

evade tax liability. Instead of filing false tax returns,

Benson’s plan encouraged customers not to file a tax

return at all. Such a don’t-do-it-yourself kit does not

require forms or filings. Here, the devil is not in the

details. Like every other tax protester, Benson was

selling an illegal method by which to avoid paying taxes;

the details of that method are immaterial.

Second, Benson’s materials were prepared in such a

way so that the entirety of either Package could be sent to
Nos. 08-1312 and 08-1586 7

the IRS if they began an investigation. The Reliance

Defense Package included a customized Reliance Letter,

which concluded:

It is insanely unrealistic for someone like [customer’s

name] to believe that he would be required to file any

forms with any state taxing agency or the Federal

Government, when the 16th Amendment to the U.S.

Constitution is an absolute complete total fraud as

proven by The Law That Never Was Volume I and in

excess of 17,000 documents etc. that [customer’s name]

relies on as his STATE OF MIND, FRAME OF MIND

RELIANCE, AND BELIEF. The entire Reliance Program shall become a part of his permanent record.

Therefore, Benson was providing his customers with

something to send to the IRS in an effort to avoid paying

taxes. At least one taxpayer submitted the Reliance

Letter and several other elements of the Reliance

Defense Package along with the entire 16th Amendment

Reliance Package to the IRS when questioned about

failing to file an income tax return. The only distinction

between Benson’s plan and other plans is that Benson’s

materials were to be utilized after the IRS launched an

investigation. So Benson did organize a plan or arrangement and participated in the sale of an interest in the

plan or arrangement. 26 U.S.C. § 6700(a)(1).

Benson made numerous statements about the tax

benefits to be enjoyed by customers as a result of purchasing his materials and participating in his plan or

arrangement. 26 U.S.C. § 6700(a)(2)(A). In promoting

his materials, Benson claimed that he “discovered that
8 Nos. 08-1312 and 08-1586

the 16th Amendment was not ratified” and to have documents “proving that the 16th Amendment . . . is an absolute, complete, total fraud.” Benson also claimed on his

website that:

After serving time in federal prison for not paying his

United States income taxes, Bill Benson still does not

pay income taxes and yet our federal government

chooses not to arrest him. Why? Because now he can

use this book, which he has written: ‘THE LAW THAT

NEVER WAS’ in his defense.

Benson marketed the Reliance Defense Package on his

website as a “compendium of information giving you the

education and choice toward not filing an Income tax

return. This compendium will give you the education to

say ‘Based on my state-of-mind, frame of mind, reliance

and belief I am obeying the dictates of Constitutional

Law.’ ” Benson boasted that “[t]o date, the IRS has steadfastly refused to prosecute any person standing on this

defense. Why do they do this? Because they know

they cannot win!!” Benson also stated that “included in

your Package will be numerous DVDs and many other

references proving that you are not a taxpayer!”

Benson knew or had reason to know that his statements

were false or fraudulent. 26 U.S.C. § 6700(a)(2)(A). Benson’s

claim to have discovered that the Sixteenth Amendment

was not ratified has been rejected by this Court in Benson’s

own criminal appeal. United States v. Benson, 941 F.2d 598,

607 (7th Cir. 1991) (“In Thomas, we specifically examined

the arguments made in The Law That Never Was, and

concluded that ‘Benson . . . did not discover anything.’ ”
Nos. 08-1312 and 08-1586 9

(quoting United States v. Thomas, 788 F.2d 1250, 1253 (7th

Cir. 1986))). “[W]e have repeatedly rejected the claim that

the Sixteenth Amendment was improperly ratified. One

would think this repeated rejection of Benson’s Sixteenth Amendment argument would put the matter to

rest.” Benson, 941 F.2d at 607 (citations omitted).

Benson knows that his claim that he can rely on his book

to prevent federal prosecution is equally false because

his attempt to rely on his book in his own criminal case

was ineffective. Benson, 941 F.2d at 607. Benson’s book

has been repeatedly discredited by the courts. Miller v.

United States, 868 F.2d 236, 241 (7th Cir. 1989) (“We find

it hard to understand why the long and unbroken line

of cases upholding the constitutionality of the sixteenth

amendment generally, and those specifically rejecting

the argument advanced in The Law That Never Was, have

not persuaded Miller and his compatriots to seek a

more effective forum for airing their attack on the

federal income tax structure.” (citations omitted)).

Benson’s statement that the government cannot successfully prosecute any person choosing not to file a tax

return based on his belief that he is obeying the dictates

of constitutional law is also false. This argument seems to

be derived from Cheek v. United States, 498 U.S. 192 (1991),

as discussed above. But Cheek only supports a defense

that the defendant misunderstood the requirements of the

tax code, not that he believed those requirements to be

unconstitutional. Id. at 205-06 (“Claims that some of the

provisions of the tax code are unconstitutional are submissions of a different order [from a good-faith misunder-
10 Nos. 08-1312 and 08-1586

standing of the law]. . . . [D]efendant’s views about the

validity of the tax statutes are irrelevant to the issue of

willfulness . . . .”); United States v. Dunkel, 927 F.2d 955, 955-

56 (7th Cir. 1991) (stating that Cheek held that “judges may

rebuff defenses based on erroneous constitutional beliefs

(such as that the 16th Amendment was not properly

ratified)”).

Benson argues that because he made no false statements, materiality is not at issue. We obviously disagree

with Benson’s premise and so must decide whether

Benson’s false statements pertained to a material matter.

26 U.S.C. § 6700(a)(2)(A). There is no matter more

material to the sale of a tax avoidance package than

whether the package effectively allows customers to

avoid taxes. Benson’s program was organized and promoted as a golden ticket whereby purchasers could

avoid income tax liability and criminal liability. Benson’s

false statements regarding the vulnerability of the Sixteenth Amendment and the ability of his customers to

refuse to pay taxes without being prosecuted were

material because they would have a “ ‘substantial impact’

on the decision to purchase [his] tax package.” United

States v. Gleason, 432 F.3d 678, 683 (6th Cir. 2005) (citing

United States v. Buttorff, 761 F.2d 1056, 1062 (5th Cir. 1985);

see also United States v. White, 769 F.2d 511, 515 (8th Cir.

1985) (material because “taxpayers who have been or

are now being audited by the IRS or are involved in

litigation because they relied upon appellant’s representations should certainly have been informed about

their complete lack of merit”). Even if some of Benson’s

followers purchased the Packages for educational purposes
Nos. 08-1312 and 08-1586 11

or to take political action, as Benson claims, it is hard to

believe they would have bought the materials knowing

they were false.

2. Likelihood of Recurrence

In determining whether an injunction is appropriate

to prevent recurrence of the illegal conduct, the court

must consider the totality of the circumstances including:

(1) the gravity of harm caused by the offense; (2) the

extent of the defendant’s participation and his degree

of scienter; (3) the isolated or recurrent nature of the

infraction and the likelihood that the defendant’s

customary business activities might again involve

him in such [a] transaction; (4) the defendant’s recognition of his own culpability; and (5) the sincerity

of his assurances against future violations.

Raymond, 228 F.3d at 813 (quoting Kaun, 827 F.2d at 1149-

50) (internal quotations omitted). Lengthy discussion of

this matter is not warranted. Reliance on Benson’s

false promises has deprived the government of revenue

and has harmed Benson’s customers who were deceived

by the “siren call of the tax protester movement.” United

States v. Engh, 330 F.3d 954, 956 (7th Cir. 2003). Benson

was at the heart of this scheme, which he knew or

should have known had been thoroughly rejected by the

courts. His violation of § 6700 was not isolated, but continuous since his false assurances about the efficacy of his

products were posted on his website. Benson does not

acknowledge his culpability, and, despite any assurances
12 Nos. 08-1312 and 08-1586

to the district court, he is not likely to stop without an

injunction. The district court adequately examined the

necessary factors and did not abuse its discretion in

concluding that an injunction was necessary. See Kaun,

827 F.2d at 1148.

B. First Amendment

Of course, even though the injunction was properly

granted under 26 U.S.C. § 7408, it still must meet the

standards of the First Amendment. Benson claims that

the injunction is a violation of his constitutional right

to engage in political expression and that the government

is trying to squelch his view that the Sixteenth Amendment

was never ratified. The government contends that the

injunction enjoins false commercial speech, which

receives no First Amendment protection.

The First Amendment provides broad protection to

speech, but not all speech. Commercial speech receives

lesser protection and false or misleading commercial

speech receives no protection at all. Central Hudson Gas &

Elec. Corp. v. Public Service Comm’n of New York, 447 U.S.

557, 562-63 (1980). “For commercial speech to come

within [the protection of the First Amendment], it at least

must concern lawful activity and not be misleading.” Id.

at 566. When deciding if speech is commercial, appropriate considerations include whether: (1) the speech is an

advertisement; (2) the speech refers to a specific product;

and (3) the speaker has an economic motivation for the

speech. Bolger v. Youngs Drug Products Corp., 463 U.S. 60,

66-67 (1983).
Nos. 08-1312 and 08-1586 13

While Benson may sell his book, he may not promote its sale 2

by claiming the ability to rely on it to avoid prosecution as he

used to do on his website, or by making any other false promises. 

There is some debate about what the injunction in this

case actually prohibits. Benson repeatedly asserts that it

prevents him from distributing court opinions, legislative

journals, and other public records, and from speaking

about or expressing an opinion about those documents.

We interpret the injunction as the government did at oral

argument: that it prohibits “false statements made in

connection with the sale of a product.” The government

clarified that the injunction does not prevent Benson

from promoting his opinion in the public square. Neither

is Benson prohibited from selling his book, The Law

That Never Was, according to the government’s brief.

2

Therefore, Benson is not prohibited from distributing

his opinion that the Sixteenth Amendment was not

ratified or public documents that he believes support his

claim—both of which are contained in his book.

What Benson is prohibited from is engaging in unprotected false commercial speech. This interpretation is

evidenced in the language of the injunction the government originally requested, prohibiting Benson

from directly or indirectly, by means of false, deceptive, or

misleading commercial speech:

(1) Organizing, promoting, marketing, or

selling . . . the tax shelter, plan, or arrangement

known as “The Reliance Defense Package,” or any
14 Nos. 08-1312 and 08-1586

other abusive tax shelter, plan or arrangement

that incites taxpayers to attempt to violate the

internal revenue laws . . . ;

(2) Engaging in any conduct subject to penalty

under IRC § 6700, i.e., making or furnishing, in

connection with the organization or sale of an

abusive tax shelter, plan, or arrangement, a statement [he] know[s] or [has] reason to know is false

or fraudulent as to any material matter; and

(3) Engaging in any conduct that interferes with

the administration and enforcement of the

internal revenue laws;

(emphasis added). We read the injunction issued in this

spirit. Therefore, the injunction prohibits “only false,

deceptive or misleading commercial speech that is

related to the provision of tax advice.” Raymond, 228 F.3d

at 815 (citing Kaun, 827 F.2d at 1152).

Benson was engaged in false commercial speech. As

detailed above, Benson made many false statements

about the benefits of buying his materials. Specifically,

Benson promised potential customers that his products

would free them from taxation and protect them from, or

defend them in the event of, prosecution. These false

statements were made for the purpose of promoting the

sale of his materials and were therefore commercial.

Benson purported to be selling a way to avoid tax liability;

what he was actually selling was a way to increase tax and

criminal liability for failing to pay taxes. That is false

advertising, which may be banned consistent with the

First Amendment. In re R.M.J., 455 U.S. 191, 203 (1982)
Nos. 08-1312 and 08-1586 15

(“Misleading advertising may be prohibited entirely.”); see

United States v. Schiff, 379 F.3d 621, 630 (9th Cir. 2004)

(“An advertisement is fraudulent when it misleads customers about the benefit of the offered product.”).

To the extent that the injunction prohibits Benson

from actually selling the Packages, as opposed to falsely

advertising for their sale, this is appropriate because the

sale of the Packages inherently involves false commercial

speech. Their very names, Reliance Defense Package and

16th Amendment Reliance Package, imply that a

customer may properly rely on the materials he is about

to buy. And since the customer must know that he is

buying information about taxes, he is being made to

believe that he is buying a theory or defense on which

he may rely as it pertains to his taxes. This belief is

false. “Because the injunction at issue merely restrains

[Benson] from advertising, marketing, and selling

materials that are based on false and misleading theories

under the guise of tax advice, [Benson’s] First Amendment

claim fails.” Kaun, 827 F.2d at 1152.

Benson argues that he was simply encouraging the

public to take political action. Nothing in this opinion

prohibits him from doing as much. The government

explains in its brief that the injunction “leaves Benson free

to communicate a political message.” Benson may openly

share his views about the ratification of the Sixteenth

Amendment or the tyranny of the federal government and

IRS. It is not illegal for Benson to urge his followers to

take political action. What is illegal, and enjoined, is for

Benson to try to sell something he does not posses—the
16 Nos. 08-1312 and 08-1586

Because we find that the injunction properly enjoins Benson 3

from engaging in false or misleading commercial speech, we do

not need to consider the alternate theory of whether the injunction is proper because it prohibits commercial “speech

proposing an illegal transaction, which a government may

regulate or ban entirely.” Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 496 (1982) (citations omitted);

Buttorff, 761 F.2d at 1066 (“Appellant’s promotion of his trust

does advocate the attempt to take tax benefits repeatedly

declared invalid by the courts.”).

golden ticket of tax evasion without consequences. Therefore, according to our great tradition of tolerating

nutty opinions, the marketplace of ideas remains open to

Benson; the commercial marketplace, however, is appropriately limited to speech that is not deceptive. See Virginia

State Bd. of Pharmacy v. Virginia Citizens Consumer Council,

425 U.S. 748, 771-72 (1976) (First Amendment “does not

prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely”).3

C. Customer List

The government contends that the district court should

have required Benson to provide the government with a

list of names and identifying information of persons

who purchased the Reliance Defense Package or the 16th

Amendment Reliance Package from Benson. Benson argues

that the district court acted properly because requiring

him to turn over his customer list is not authorized by

any statute and would violate the First and Fifth Amend-
Nos. 08-1312 and 08-1586 17

Section 7402(a) makes clear that the remedies it provides “are

4

in addition to and not exclusive of any and all other remedies

of the United States in such courts or otherwise to enforce”

the tax laws. The government was not required to seek the

customer list through an administrative process as Benson

argues.

ments. We review a district court’s decision to grant or

deny an injunction for an abuse of discretion. Kaun, 827

F.2d at 1148. However, “[a] district court by definition

abuses its discretion when it makes an error of law.” Koon

v. United States, 518 U.S. 81, 100 (1996).

The district court denied the requested customer list

order because it determined the order was not related to

preventing future misconduct by Benson and was

beyond the scope of Benson’s wrongdoing. Whether true

or not, the district court’s observations are not relevant

under the applicable law. District courts possess jurisdiction under 26 U.S.C. § 7402(a) to “issue . . . writs and orders

of injunction . . . and such other orders . . . as may be

necessary or appropriate for the enforcement of the

internal revenue laws.”4

The government has identified seven individuals who

have received Benson’s materials and have failed to file

income tax returns. Reliance on Benson’s materials has

and will continue to irreparably harm Benson’s customers,

who have exposed themselves to increased tax and criminal liability, and the government, which is “not receiving

required tax payments and [is] forced to expend resources

to [identify and] collect the unpaid taxes.” United States
18 Nos. 08-1312 and 08-1586

v. Schulz, 517 F.3d 606, 607-08 (2d Cir. 2008). Without a

customer list, it is unlikely that the government will

identify each of Benson’s customers who followed his

advice before the statute of limitations has run. Benson

will not be harmed by identifying his customers and it

will serve the public interest for the government to

receive a full list of Benson’s customers, both to warn

them of the falsity and ineffectiveness of Benson’s

claims, and to enforce the income tax laws. Production of

Benson’s customer list is also proper to monitor compliance with the injunction’s requirement that Benson

“mail . . . a copy of the injunction order to every person

and entity to whom he sold or furnished the [Packages].”

See id. We note that this is not the first time a promoter of

false tax schemes has been required to divulge his customer list. E.g. United States v. Bell, 414 F.3d 474, 485 (3d

Cir. 2005); Schulz, 517 F.3d at 607-08; United States v.

Kotmair, Civ. No. WMN-05-1297, 2006 WL 4846388 at *7-8

(D. Md. Nov. 29, 2006), aff’d, 234 Fed. Appx. 65, 65-66 (4th

Cir. 2007); United States v. Harkins, 355 F. Supp. 2d 1175,

1182 (D. Or. 2004); United States v. Stephenson, 313 F. Supp.

2d 1054, 1061 (W.D. Wash. 2004).

Such an order will not infringe on the First Amendment

rights of Benson’s customers. Benson’s attempt to analogize this case to NAACP v. Alabama ex rel. Patterson, 357

U.S. 449 (1958) is misplaced. Benson operated an Internet

marketing scheme, not a membership organization. As

in Bell, 414 F.3d at 485, Benson’s “operation was

primarily a commercial enterprise, not a political group.

Producing a customer list does not offend the First Amendment because commercial transactions do not entail the
Nos. 08-1312 and 08-1586 19

same rights of association as political meetings.” Benson’s

claim that divulging his customer list will violate his

customers’ right to receive and read what they choose

also falls short. The government acknowledges that

Benson’s customers are free to receive, possess, read, and

speak about materials from Benson and others

challenging the validity of the Sixteenth Amendment or

protesting the federal tax system. Additionally, as the

government suggests, we expect the district court to enter

an appropriate protective order to prevent public disclosure of the customers’ identities.

Finally, Benson’s Fifth Amendment claim need not

delay us because the government asked the district court

to issue an order of immunity in connection with Benson’s

compelled act of producing his customer list. The government’s brief indicates that it remains open to this

solution and we expect the district court to issue such an

order upon remand, thereby eliminating Benson’s Fifth

Amendment claim.

III. CONCLUSION

For the reasons discussed above, we AFFIRM the injunction imposed by the district court, but REVERSE as to the

customer list, and REMAND for further appropriate proceedings.

4-6-09