Lenyszynbrief

Case: 16-10063 Date Filed: 07/07/2016 Page: 1 of 52
No. 16-10063
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
–––––––––––––––––––––––––––––––––––––––––––––
FEDERAL TRADE COMMISSION,
Plaintiff-Appellee,
v.
CHRIS LENYSZYN,
Defendant-Appellant.
–––––––––––––––––––––––––––––––––––––––––––––
On Appeal from the United States District Court
for the Northern District of Georgia
No. 1:14-cv-01599-HLM
Hon. Harold L. Murphy
–––––––––––––––––––––––––––––––––––––––––––––
BRIEF OF THE FEDERAL TRADE COMMISSION
–––––––––––––––––––––––––––––––––––––––––––––
DAVID C. SHONKA
Acting General Counsel
JOEL MARCUS
Director of Litigation
Of Counsel: BRADLEY GROSSMAN
ROBIN L. ROCK Attorney
Attorney FEDERAL TRADE COMMISSION
FEDERAL TRADE COMMISSION 600 Pennsylvania Avenue, N.W.
Atlanta, Georgia 30303 Washington, D.C. 20580
(202) 326-2994
[email protected]
No. 16-10063 (11th Cir.)
Federal Trade Commission v. Chris Lenyszyn
Eleventh Circuit Rule 26.1 Certificate of Interested Persons
Bazinet, Jeffrey S. – Counsel for Appellant
Bryan Cave LLP – Counsel for court-appointed receiver
Couillou, Christopher – Assistant Director, FTC Southeast Region
Davis, Zipperman, Kirschenbaum & Lotito, LLP – Counsel for Appellant
Federal Trade Commission – Appellee
Fuqua, Michael – Court-appointed receiver
GlassRatner Advisory & Capital Group, LLC – Firm employing court-appointed

receiver
Grossman, Bradley D. – Counsel for FTC
Korschun, H. Marshall – Counsel for Appellant
Lenyszyn, Christopher – Appellant
Liebes, Cindy A. – Director, FTC Southeast Region
Lotito, Nicholas A. – Counsel for Appellant
Marcus, Joel – FTC Director of Litigation
Mateo, Marcela Claudia – Former counsel for FTC
Matthews, Careton R. – Counsel for John Williams; WSA, LLC; and Williams
Scott & Associates, LLC (defendants below)
Murphy, Harold L. (Hon.) – United States District Judge
Nuechterlein, Jonathan E. – Former FTC General Counsel
Odom, Jennifer D. – Counsel for court-appointed receiver
C1 of 2
No. 16-10063 (11th Cir.)
Federal Trade Commission v. Chris Lenyszyn
Parrington, Danielle C. – Counsel for court-appointed receiver
Peters & Monyak LLP – Counsel for Appellant
Powell Goldstein LLP – Predecessor in interest to Bryan Cave LLP, counsel for
court-appointed receiver
Red Apple Group, Inc. – Georgia corporation owned by defendant Chris Lenyszyn
Rock, Robin L. – Counsel for FTC
Shonka, David C. – Acting FTC General Counsel
Sterling Ross Payment Systems LP – Georgia limited partnership, affiliate of

Williams Scott & Associates, LLC and WSA, LLC, defendants below
The Law Offices of Careton R. Matthews – Counsel for John Williams; WSA,
LLC; and Williams Scott & Associates, LLC (defendants below)
Warrant Services Administration – Assumed business name used by WSA, LLC

(defendant below)
Williams Scott & Associates, LLC – Defendant below, a Georgia limited liability
company
Williams, John – Defendant below
WSA, LLC – Defendant below, a Nevada limited liability company
The Federal Trade Commission further states that, to the best of its
knowledge, no publicly traded company or corporation has an interest in the
outcome of this case or appeal.
C2 of 2
STATEMENT REGARDING ORAL ARGUMENT
The FTC does not believe oral argument will materially assist the Court in
its consideration of this appeal and therefore does not request it.
i
TABLE OF CONTENTS
Statement Regarding Oral Argument .........................................................................i
Table of Authorities ..................................................................................................iv
Questions Presented ................................................................................................... 1
Statement of the Case................................................................................................. 2
A. The WSA Debt Collection Scheme ............................................................. 2
B. Lenyszyn’s Role In WSA ............................................................................ 6
C. Lenyszyn Helped WSA Defy A Preliminary Injunction ............................. 9
D. The FTC’s Action Against Lenyszyn And The Court’s

Decision ..................................................................................................... 11
Standard of Review .................................................................................................. 17
Summary of Argument............................................................................................. 18
Argument.................................................................................................................. 19
I. The District Court Correctly Ruled Lenyszyn’s Exhibits

Inadmissible And Refused To Consider Them. ............................................... 19
A. The Court Properly Excluded Lenyszyn’s Written Testimony

Because He Asserted His Fifth Amendment Rights To Avoid
Cross-Examination On The Same Subjects. ................................................ 20
B. The Court Properly Excluded Unsworn Statements By John

Williams. ...................................................................................................... 25
C. The Court Properly Excluded Unauthenticated Business

Records......................................................................................................... 26
II. The District Court Correctly Granted Summary Judgment And

Held Lenyszyn Personally Liable For WSA’s Violations................................ 31
A. Lenyszyn Is Personally Liable Under Established Law. ............................. 32
B. Lenyszyn Has Not Established A Genuine Factual Dispute. ...................... 34
ii
III. The District Court Properly Exercised Its Discretion In Imposing

Joint And Several Liability. .............................................................................. 37
Conclusion ............................................................................................................... 39
iii
TABLE OF AUTHORITIES
*
CASES
Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct.

1598 (1970) ..........................................................................................................25
Allen v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306
(11th Cir. 2007) ....................................................................................................31
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct.

2505 (1986) ..........................................................................................................31
Arango v. U.S. Dep’t of Treasury, 115 F.3d 922 (11th

Cir. 1997) .............................................................................................................20
Asociación de Periodistas de Puerto Rico v. Mueller, 529

F.3d 52 (1st Cir. 2008) .........................................................................................28
Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551

(1976) ...................................................................................................................37
Bozeman v. Orum, 422 F.3d 1265 (11th Cir. 2005) ................................................25
Brown v. United States, 356 U.S. 148, 78 S. Ct. 622

(1958) ...................................................................................................................22
Carr v. Tatangelo, 338 F.3d 1259 (11th Cir. 2003) ................................................26
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548

(1986) ...................................................................................................................35
CFTC v. Wilshire Inv. Mgmt., 531 F.3d 1339 (11th Cir.

2008).....................................................................................................................17
Corwin v. Walt Disney Co., 475 F.3d 1239 (11th Cir.

2007).....................................................................................................................19
Dietz v. Smithkline Beecham Corp., 598 F.3d 812 (11th

Cir. 2010) .............................................................................................................31
*
Cases and other authorities principally relied upon are marked with asterisks.
iv
Edmond v. Consumer Prot. Div. (In re Edmond), 934

F.2d 1304 (4th Cir. 1991).....................................................................................22
Eli Lilly & Co. v. Air Express Int’l USA, Inc., 615 F.3d
1305 (11th Cir. 2010) ...........................................................................................28
First Nat’l Life Ins. Co. v. Cal. Pac. Life Ins. Co., 876
F.2d 877 (11th Cir. 1989).....................................................................................28
Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr

S.A., 377 F.3d 1164 (11th Cir. 2004) ...................................................................22
FTC v. Amy Travel Serv., Inc., 875 F.2d 564 (7th Cir.
1989)........................................................................................................ 32, 33, 34
FTC v. Click4Support, LLC, Civ. No. 15-5777, 2015 WL

7067760 (E.D. Pa. Nov. 10, 2015), appeal pending No.
15-3937 (3d Cir.)....................................................................................................9
FTC v. Commerce Planet, Inc., 815 F.3d 593 (9th Cir.

2016).....................................................................................................................38
FTC v. Direct Mktg. Concepts, Inc., 624 F.3d 1 (1st Cir.

2010).....................................................................................................................33
FTC v. Gem Merch. Corp., 87 F.3d 466 (11th Cir.

1996).............................................................................................................. 32, 37
FTC v. Grant Connect, LLC, 827 F. Supp. 2d 1199 (D.

Nev. 2011), aff’d in part, 763 F.3d 1094 (9th Cir.
2014).......................................................................................................................9
FTC v. IAB Mktg. Assocs., LP, 746 F.3d 1228 (11th Cir.
2014)........................................................................................................ 32, 33, 37
FTC v. Publ’g Clearing House, Inc., 104 F.3d 1168 (9th

Cir. 1997) ...................................................................................................... 33, 36
FTC v. Washington Data Res., Inc., 704 F.3d 1323 (11th

Cir. 2013) ...................................................................................................... 17, 37
v
FTC v. World Media Brokers, 415 F.3d 758 (7th Cir.

2005).....................................................................................................................36
Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590 (11th

Cir. 1995) .............................................................................................................35
Jones v. UPS Ground Freight, 683 F.3d 1283 (11th Cir.

2012).....................................................................................................................30
Josendis v. Wall To Wall Residence Repairs, Inc., 662

F.3d 1292 (11th Cir. 2011)...................................................................................19
Macuba v. Deboer, 193 F.3d 1316 (11th Cir. 1999) ...............................................29
McDermott, Inc. v. AmClyde, 511 U.S. 202, 114 S. Ct.

1461 (1994) ..........................................................................................................38
McMillian v. Johnson, 88 F.3d 1573 (11th Cir. 1996) ..................................... 29, 35
Saunders v. Emory Healthcare, Inc., 360 F. App’x 110

(11th Cir. 2010) ....................................................................................................30
SEC v. Calvo, 378 F.3d 1211 (11th Cir. 2004) ........................................................38
SEC v. Monterosso, 756 F.3d 1326 (11th Cir. 2014) ................................. 17, 37, 38
Slough v. FTC, 396 F.2d 870 (5th Cir. 1968) ............................................................6
United States v. $133,420.00 in U.S. Currency, 672 F.3d

629 (9th Cir. 2012) ...............................................................................................22
United States v. Balsys, 524 U.S. 666, 118 S. Ct. 2218

(1998) ...................................................................................................................23
United States v. Costa, 31 F.3d 1073 (11th Cir. 1994) ............................................26
United States v. Dabbs, 134 F.3d 1071 (11th Cir. 1998).......................................7, 9
United States v. Hubbell, 530 U.S. 27, 120 S. Ct. 2037

(2000) ...................................................................................................................24
United States v. Ismoila, 100 F.3d 380 (5th Cir. 1996) ...........................................31
vi
United States v. Parcels of Land, 903 F.2d 36 (1st Cir.

1990).............................................................................................................. 22, 23
United States v. Rylander, 460 U.S. 752, 103 S. Ct. 1548

(1983) ...................................................................................................................20
United States v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000)......................................29
United Techs. Corp. v. Mazer, 556 F.3d 1260 (11th Cir.

2009).....................................................................................................................30
Wright v. Farouk Sys., Inc. 701 F.3d 907 (11th Cir. 2012) .............................. 17, 35
STATUTES
15 U.S.C. § 45(a) ............................................................................................ 1, 4, 14
15 U.S.C. § 53(b) ................................................................................................ 9, 37
15 U.S.C. § 1692c ........................................................................................... 1, 5, 14
15 U.S.C. § 1692d ........................................................................................... 1, 5, 14
15 U.S.C. § 1692e ........................................................................................... 1, 4, 14
15 U.S.C. § 1692e(11) ........................................................................................ 5, 14
15 U.S.C. § 1692g ............................................................................................... 1, 14
15 U.S.C. § 1692g(a) .................................................................................................5
15 U.S.C. § 1692g(b) .................................................................................................5
15 U.S.C. § 1692l .......................................................................................................9
15 U.S.C. § 1692l(a) ..................................................................................................9
28 U.S.C. § 1292(a)(1) .............................................................................................12
28 U.S.C. § 1746 ............................................................................................... 13, 25
RULES
Fed. R. Civ. P. 33(b) ................................................................................................25
vii
Fed. R. Civ. P. 33(b)(3)............................................................................................13
Fed. R. Civ. P. 56 .....................................................................................................28
Fed. R. Civ. P. 56(a).................................................................................................31
Fed. R. Civ. P. 56(c)(1) ............................................................................................19
Fed. R. Civ. P. 56(c)(2) ..................................................................................... 12, 19
Fed. R. Civ. P. 56(c)(4) ............................................................................................25
Fed. R. Evid. 803(6) .................................................................................................28
Fed. R. Evid. 804(b)(3) ............................................................................................26
Fed. R. Evid. 807 .....................................................................................................30
Fed. R. Evid. 901(a) .................................................................................................29
MISCELLANEOUS
10A Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 2722 (3d ed.
1998).....................................................................................................................30
viii
QUESTIONS PRESENTED
Appellant Chris Lenyszyn and his co-defendants below operated a
fraudulent debt collection scheme known as WSA. Lenyszyn and his fellow
collectors posed as law enforcement officials, sought payment for debts that
consumers did not owe or that WSA had no authority to collect, and falsely
threatened to prosecute consumers or revoke their driver’s licenses unless they
paid. All of those practices violated the Federal Trade Commission Act and the
Fair Debt Collection Practices Act. The district court entered summary judgment
against Lenyszyn, holding him jointly and severally liable for money that WSA
unlawfully took from consumers while he was a managing member of the
company. The questions presented are:
1. Whether, in granting the FTC’s motion for summary judgment, the
district court properly declined to consider Lenyszyn’s unsworn witness
statements, unauthenticated purported business records, and self-serving written
testimony on subjects for which he had previously invoked his Fifth Amendment
right not to testify.
2. Whether the district court correctly granted summary judgment and
held Lenyszyn personally liable for WSA’s violations of the Federal Trade
Commission Act, 15 U.S.C. § 45(a), and the Fair Debt Collection Practices Act, 15
U.S.C. §§ 1692c-1692e, 1692g.

3. Whether the district court properly imposed joint and several liability
on Lenyszyn for the amount WSA received from its violations during the period he
was a managing member.
STATEMENT OF THE CASE
A. The WSA Debt Collection Scheme
Williams, Scott & Associates, LLC and WSA, LLC operated a debt
1, 2
collection firm under the names “WSA” and “Warrant Services Association.”
Between 2010 and 2014, WSA made false threats that led consumers to pay
roughly $4 million to satisfy debts they did not owe or that WSA had no right to
3
collect. Lenyszyn was a managing member of WSA, LLC between September
4
2013 and November 2014. During that period, he provided crucial support that
enabled WSA to defraud consumers. See pp. 6-8, 11, infra.
1
“WSA” refers to all these entities collectively. Each record citation includes
the district court document and page number (“Doc. [number] at [page]”) and the
corresponding page number in either Lenyszyn’s Appendix (“App.”) or the FTC’s
Supplemental Appendix (“Supp.”).
2
E.g., Doc. 2-3 at 41-42, 157, 162 (Supp. 58-59, 174, 179); Doc. 41-5 at 28
(Supp. 282); Doc. 121-34 at 62 (Supp. 690).
3
E.g., Doc. 2-3 at 18-21, 172, 175 (Supp. 35-38, 189, 192); Doc. 55-4 at 4-5
(Supp. 354-55); Doc. 94-2 at 2-3, 5-7 (Supp. 441-42, 444-46); Doc. 121-30 at 1-3
(Supp. 547-49).
4
Doc. 2-2 at 69-70, 72 (Supp. 10-11, 13).
2
WSA’s business consisted of purchasing lists of individuals who had applied

5
for or received consumer loans, contacting them, accusing them of being
delinquent on their debts, and falsely claiming that the lenders had hired or
6
authorized WSA to collect the debts. The WSA caller gave the false impression
that WSA was a legitimate firm collecting on proper debts by revealing that it
possessed consumers’ sensitive personal information, including their Social
Security numbers and bank account information, data that a consumer could
7
believe a legitimate debt collector would have. WSA’s collectors also routinely
pretended—also falsely—to be affiliated with law enforcement agencies or law

8
firms.
WSA used threats and harassment to extract payment. Its collectors,
including Lenyszyn himself (see p.8, infra), regularly accused consumers of
5
E.g., Doc. 121-4, 121-23, 121-25, 121-26 (Supp. 447, 516-17, 520-21).
6
Doc. 2-3 at 18, 41, 60, 79-80, 84, 105, 136, 145-47, 157, 172, 175 (Supp. 35,
58, 77, 96-97, 101, 122, 153, 162-64, 174, 189, 192); Doc. 41-5 at 7, 28 (Supp.
261, 282); Doc. 55-4 at 4-5 (Supp. 354-55); Doc. 121-31 at 27 (Supp. 561); Doc.
121-33 at 23-24 (Supp. 633-34); Doc. 121-34 at 44-45, 61-62 (Supp. 672-73, 689-
90).
7
Doc. 2-3 at 72, 79-80, 84, 97, 125, 178, 199 (Supp. 89, 96-97, 101, 114, 142,
195, 216); Doc. 121-31 at 24 (Supp. 558); Doc. 121-34 at 61 (Supp. 689).
8
Doc. 2-3 at 10, 33, 50, 71, 100, 116, 136-37, 156-58, 162, 169, 177 (Supp. 27,
50, 67, 88, 117, 133, 153-54, 173-75, 179, 186, 194); Doc. 41-5 at 7, 10-11 (Supp.
261, 254-65); Doc. 121-31 at 50, 64 (Supp. 584, 598).
3
9
committing crimes, including bank fraud and theft by deception. They told
consumers that unless they paid WSA immediately, the company would arrange
10
their arrest, prosecution, and cancellation of their driver’s licenses. WSA also
called consumers at their workplaces, used abusive or profane language, and
placed repeated calls to consumers in a short timeframe in order to intimidate

11
them. WSA even contacted the co-workers, relatives, and friends of the alleged
12
debtors and revealed information about their supposed debts.
All of these practices violated the FTC Act and the Fair Debt Collection
Practices Act (FDCPA), in numerous ways. The FTC Act prohibits “deceptive” or
“unfair” practices. 15 U.S.C. § 45(a). Section 807 of the FDCPA bars debt
collectors from, inter alia, deceptively claiming to be attorneys or law enforcement
personnel; misrepresenting the character, amount, or legal status of a debt; and
falsely accusing the consumer of a crime. 15 U.S.C. § 1692e. Section 806
9
Doc. 2-3 at 33, 52, 54, 71-72, 97, 136-38, 146, 198-200 (Supp. 50, 69, 71, 88-
89, 114, 153-55, 163, 215-17); Doc. 41-5 at 7, 17 (Supp. 261, 271); Doc. 121-31 at
82 (Supp. 616); Doc. 121-33 at 47 (Supp. 657).
10
Doc. 2-3 at 10, 12-13, 35, 41-43, 50-51, 60, 79, 105, 116, 124, 156, 177-78
(Supp. 27, 29-30, 52, 58-60, 67-68, 77, 96, 122, 133, 141, 173, 194-95); Doc. 41-5
at 13, 15-16, 28 (Supp. 267, 269-70, 282); Doc. 121-31 at 66 (Supp. 600); Doc.
121-33 at 46 (Supp. 656); Doc. 121-34 at 45, 62-63 (Supp. 673, 690-91).
11
Doc. 2-3 at 18, 35, 51-55, 62, 73-74, 128, 155, 200 (Supp. 35, 52, 68-72, 79,
90-91, 145, 172, 217); Doc. 41-5 at 26-27 (Supp. 280-81).
12
Doc. 2-3 at 10, 52-53, 105, 155 (Supp. 27, 69-70, 122, 172); Doc. 121-31 at 92
(Supp. 626).
4
prohibits obscene or abusive language and repeated calls with the intent to annoy,
abuse, or harass the consumer. 15 U.S.C. § 1692d. Section 805 forbids unwanted
calls to consumers’ employers and other third parties. 15 U.S.C. § 1692c.
The FDCPA also requires debt collectors to make disclosures that WSA
failed to make. Its collectors did not reveal, in their first communication with
consumers, that they were debt collectors attempting to collect a debt and that any
13
information obtained would be used for that purpose. See 15 U.S.C. § 1692e(11).
After WSA’s initial communications with consumers, it failed to provide a written
notice containing the debt amount; the creditor’s name; a statement that the debt
will be assumed valid unless the consumer disputes it; and an offer to provide
14
written verification of the debt if the consumer disputes it in writing. See 15
U.S.C. § 1692g(a). WSA also failed to provide proof of the alleged debts when
15
consumers requested it. See 15 U.S.C. § 1692g(b).
13
Doc. 2-3 at 10, 33, 50-51, 60, 71, 79, 96-97, 105, 117-18, 124-25, 137, 156,
177, 198 (Supp. 27, 50, 67-68, 77, 88, 96, 113-14, 122, 134-35, 141-42, 154, 173,
194, 215); Doc. 121-33 at 29-30, 46-49 (Supp. 639-40, 656-59).
14
Doc. 2-3 at 11, 19, 34, 41, 55, 60-61, 74, 79-80, 84, 98, 106, 118, 124-25, 137,
179 (Supp. 28, 36, 51, 58, 72, 77-78, 91, 96-97, 101, 115, 123, 135, 141-42, 154,
196).
15
Doc. 2-3 at 11, 34, 55, 98, 106, 117, 179 (Supp. 28, 51, 72, 115, 123, 134,
196).
5
B. Lenyszyn’s Role In WSA
Lenyszyn was a managing member of WSA, LLC between September 2013

16
and November 2014. WSA’s other managing member, John Williams, has
certified under oath and penalty of perjury that Lenyszyn was both an officer and a
25 percent owner of WSA. Doc. 41-5 at 32, 34-35, 46 (Supp. 286, 288-89, 300).
Among other things, WSA paid Lenyszyn for at least one debt portfolio
17
containing the names of new potential victims. He also maintained an account
18
with TLO, a “skip tracing” service, which provided WSA with consumers’
19
addresses, Social Security numbers, and other sensitive information. WSA’s
16
Doc. 2-2 at 69-70, 72 (Supp. 10-11, 13). See also Doc. 41-2 at 13 (Supp. 235)
(Lenyszyn encourages fellow officer to file corporate documents and make
payments to Nevada Secretary of State).
17
Doc. 121-4 (Supp. 447) (Lenyszyn sends ACE Cash accounts to Williams);
Doc. 121-56 at 16 (Supp. 893) (Lenyszyn receives payment for BMG accounts);
Doc. 121-23; Doc. 121-24; Doc. 121-25; Doc. 121-26; Doc. 121-46 at 32; Doc.
121-56 at 13-15 (Supp. 516-21, 816, 890-92) (other payments).
18
Skip tracing is “the collection agency practice of tracking down debtors whose
whereabouts have become unknown.” Slough v. FTC, 396 F.2d 870, 872 n.2 (5th
Cir. 1968).
19
See Docs. 121-10 & 121-11 (Supp. 450-504) (invoices showing skip tracing
searches performed by WSA staff); Doc. 121-12 (Supp. 505) (email from
Lenyszyn to Williams providing login credentials for WSA staff); Doc. 41-4 at 22
(Supp. 253) (WSA employee roster with names matching authorized users of
Lenyszyn’s TLO account); Doc. 55-3 at 24-25, 27-29 (Supp. 345-46, 348-50)
(same). Lenyszyn received several payments from WSA for his TLO account.
Docs. 121-15, 121-16, 121-17, 121-18, 121-19, 121-20, 121-21; Doc. 121-46 at 32
(Supp. 506-14; Supp. 816).
6
collectors used this information to create a veneer of legitimacy needed to persuade
consumers to pay the alleged debts. See p. 3, supra. To advance WSA’s
fraudulent scheme Lenyszyn also attempted (without success) to obtain a credit
card processing merchant account for WSA, which would have allowed it to
20
charge consumers’ cards.
At critical times, Lenyszyn identified himself as an owner or officer of WSA
and agreed to undergo background checks as a company representative. For
example, before obtaining the TLO skip tracing account, he tried to obtain the
same services from a different provider, CBC Innovis, and identified himself as
21
WSA’s sole “owner.” Doc. 139-1 (App. 416-37); Doc. 121-53 (Supp. 818-19).
He similarly held himself out as WSA’s sole owner or sole managing member in
his merchant account applications. Doc. 121-55 (Supp. 857-77); Doc. 121-57 at 1-
10 (Supp. 905-14); see also Doc. 136 at 13-14 (App. 277-78) (Lenyszyn admits
holding himself out as managing member in one application).
20
E.g., Doc. 41-2 at 9 (Supp. 231); Doc. 121-7 (Supp. 448); Doc. 121-8 (Supp.
449). See United States v. Dabbs, 134 F.3d 1071, 1074 (11th Cir. 1998) (“In order
to conduct credit card sales, a business must first enter into a merchant account
agreement with a bank (merchant bank) pursuant to which the merchant bank
agrees to process future credit card transactions.”).
21
In contrast, when Lenyszyn obtained the TLO account, he did not reveal his
ties to WSA, but instead applied in the name of a separate business that he
controlled. Doc. 121-29 at 2-3 (Supp. 523-24).
7
In addition to his role as a top manager of WSA, Lenyszyn admits he

22
personally engaged in debt collection for WSA during April and May 2014.
Using the pseudonym “Investigator Dan Miller” (see Doc. 41-4 at 22 (Supp. 253)),
he falsely accused consumers of crimes and asserted that their creditors had hired
WSA to obtain an arrest warrant for them, or to revoke their driver’s licenses, if
they did not pay. He described WSA as a company that “process[es] the warrants
in the division for criminal offenses for theft of services.” Doc. 121-34 at 61:8-
61:15 (Supp. 689). Even though Ace Cash Express had never hired WSA to
collect debts, he told at least one consumer that her creditor, “Ace Cash Express[,]
has hired us to go ahead and issue the warrant,” but that, as a “favor,” he would
allow her to handle the payment “on a volunteer basis” instead. Doc. 2-3 at 171-75
(Supp. 188-92); Doc. 41-5 at 28:15-28:20 (Supp. 282). He warned another
consumer that unless she “c[a]me up … with a strong payment,” she would need to
“use … that money to bail [he]rself … out of jail.” Doc. 121-34 at 45:9-45:11
(Supp. 673).
Apart from his personal involvement in WSA’s fraud, Lenyszyn had ample
notice that WSA was deceiving consumers. For example, when applying for
merchant accounts, he disclosed WSA’s 4 to 5 percent chargeback rate (Doc. 41-2
22
Br. 2; Doc. 93 pp. 7-9 ¶¶ 12-15 (App. 116-18) (Answer); Doc. 137 at 15-18 ¶¶
31-39 (App. 347-50) (Response to Statement of Material Facts).
8
23
at 5-6 (Supp. 227-28))—a key red flag for unauthorized transactions —and
learned that banks considered WSA’s business to be “high risk” (Doc. 121-8
(Supp. 449)). See also Doc. 121-36 at 15-16 (Supp. 742-43) (pleading the Fifth
Amendment when asked about WSA’s chargeback rates and whether they were
“indicative of possible fraudulent activity”). He also learned that Nevada and
Colorado had ordered WSA to cease and desist from collecting debts without a
license. Doc. 2-2 at 127-32 (Supp. 20-25) (Nevada); Doc. 2-2 at 122-25 (Supp. 15-
18) (Colorado).
C. Lenyszyn Helped WSA Defy A Preliminary Injunction
In May 2014, the FTC sued the WSA corporate defendants and Williams
under Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), and Section 814 of the
FDCPA, 15 U.S.C. § 1692l, seeking preliminary and permanent injunctions barring

24
their unlawful practices and an award of equitable monetary relief for consumers.
Doc. 1 (App. 1-17). The court issued a temporary restraining order, and later a
23
A “chargeback” occurs when a customer “challenges the validity of the charge
without a dispute from the merchant bank. … [T]he issuing bank [then] credits the
customer’s account and asks the merchant bank for a refund.” Dabbs, 134 F.3d at
1074. A chargeback rate of 1 percent or more can trigger sanctions. FTC v. Grant
Connect, LLC, 827 F. Supp. 2d 1199, 1222 & n.3 (D. Nev. 2011), aff’d in part, 763
F.3d 1094 (9th Cir. 2014). See also FTC v. Click4Support, LLC, Civ. No. 15-5777,
2015 WL 7067760, at *5 & n.8 (E.D. Pa. Nov. 10, 2015) (3 percent chargeback
rate is “extremely high”), appeal pending No. 15-3937 (3d Cir.).
24
Violations of the FDCPA “shall be deemed an unfair or deceptive act or
practice in violation of” the FTC Act. 15 U.S.C. § 1692l(a).
9
stipulated preliminary injunction, barring the corporate defendants and Williams
from engaging in collection practices similar to those alleged in the complaint,
freezing their assets, and appointing a receiver to supervise the business. Docket
Nos. 6 & 13. Shortly after the TRO, officials from the FTC and FBI gained access
to WSA’s business premises and secured relevant evidence. Doc. 121-30 at 2 ¶¶ 4-
5 (Supp. 548).
Boldly defying the preliminary injunction, Williams and WSA revived the
debt collection scheme just weeks after its entry. Although the business sought to
25
evade the injunction by using two new names, it employed the same personnel as
26 27
WSA, used WSA’s debt portfolios, and relied on the same deceptive and
28
abusive tactics as WSA. As before, Lenyszyn provided essential help to the
29
revived scheme.
25
Doc. 55-3 at 3-4 (Supp. 324-25).
26
Doc. 55-3 at 5, 25, 27-29 (Supp. 326, 346, 348-50); Doc. 55-6 at 20-26 (Supp.
378-84).
27
Doc. 55-3 at 11-12 (Supp. 332-33); Doc. 55-4 at 3-8 (Supp. 353-58).
28
Doc. 55-2 at 2-4 (Supp. 319-21); Doc. 55-3 at 3-4, 13, 15 (Supp. 324-25, 334,
336).
29
The court held the WSA corporate defendants and Williams in civil contempt
(Doc. 66 (Supp. 391-414); Doc. 79 (Supp. 418-35)), and required them to disgorge
the net revenues that they derived from engaging in contumacious debt collection
between July and November 2014. Doc. 79 at 14-16 (Supp. 431-33).
10
Lenyszyn supplied the new office space, which he leased in his own name.
Doc. 121-54 (Supp. 820-56). In leasing the space, Lenyszyn identified himself as a
financial guarantor and “managing member” of Legacy Payment Systems, one of
WSA’s two new business names. Doc. 121-54 at 33-37 (Supp. 852-56). Lenyszyn
again furnished his TLO skip tracing account to the “new” enterprises, which used
it to find Social Security numbers and other personal information and defraud
consumers. See Doc. 121-10 at 27-54; Doc. 121-11 (Supp. 476-504). Lenyszyn
30
was rewarded for those services.
D. The FTC’s Action Against Lenyszyn And The Court’s Decision
After discovering Lenyszyn’s critical role in WSA, the FTC amended its
complaint in September 2014 to add him as a defendant, charging that he
“controlled, had authority to control, or participated in” WSA’s unlawful practices.
Doc. 32 at 5 ¶ 9 (App. 44). In late October 2014, the court entered a preliminary
injunction against Lenyszyn, froze his assets, and barred him from engaging in
31
debt collection practices similar to the alleged violations. Doc. 50 (App. 77-108).
In December 2015, Lenyszyn and the FTC agreed to several minor amendments to
30
Doc. 121-18; Doc. 121-19; Doc. 121-20; Doc. 121-21; Doc. 121-22; Doc. 121-
46 at 32 (Supp. 510-15, 816).
31
A few weeks later, in November 2014, Lenyszyn was arrested on criminal
charges related to his involvement in WSA. Lenyszyn Br. 4.
11
32
the preliminary injunction, which the court then entered. Doc. 80 (Supp. 436-
39). In April 2015, the district court issued a default judgment against the
corporate defendants and Williams, granting a permanent injunction and monetary
relief to the FTC. Doc. 101 (App. 127-58).
The FTC then moved for summary judgment against Lenyszyn. Doc. 121
(App. 163-97). Although Lenyszyn proffered nine exhibits in his opposition to the
Commission’s motion (Docs. 136-1 through 136-10 (App. 293-332)), the court
33
ruled all of them inadmissible and refused to consider them. Order at 4-17. See
Fed. R. Civ. P. 56(c)(2).
First, the court declined to consider Lenyszyn’s self-serving affidavit in
which he testified about the very subjects for which he had previously asserted his
Fifth Amendment right against self-incrimination. DX5, Doc. 136-6 (App. 301-
05). The court rejected the affidavit on the basis that at his earlier deposition
32
Lenyszyn concedes that the preliminary injunction is no longer appealable, but
he complains for the first time that the district court issued it before he had been
served with the complaint. Br. 3 & n.2. Lenyszyn evaded the FTC’s seven
attempts to serve him personally and two attempts to schedule a face-to-face
meeting with him (Doc. 58 at 4 (Supp. 388)), which led the court to eventually
grant the FTC’s request to serve him by publication (Doc. 67 (Supp. 415-17)).
Once Lenyszyn formally became a party in early December 2014 (Doc. 71 (App.
109)), he did not file any objections to the preliminary injunction or pursue an
interlocutory appeal. See 28 U.S.C. § 1292(a)(1). To the contrary, he consented to
a modified version of the injunction.
33
The court’s order granting summary judgment (Doc. 146) appears at pages 447
through 545 of Lenyszyn’s Appendix.
12
Lenyszyn refused to answer “every substantive question … including the matters
set forth in his affidavit,” and that he never moved to withdraw that objection.
Order at 13-14. Lenyszyn thus could not “attempt to testify via affidavit as to
matters for which he previously asserted the Fifth Amendment privilege.” Order at
14. For the same reason, the court rejected “as a substitution for his testimony
during discovery” a form that Lenyszyn had filed with the State of Nevada (after
being sued by the FTC) in which Lenyszyn asserted under oath that he never
authorized WSA to list him as a managing member in corporate records. DX8,
Doc. 136-9 (App. 325-27). The court noted that even if the document were
admissible, the ruling on summary judgment “would not change.” Order at 9-10.
Next, the court rejected Lenyszyn’s proffers of Williams’s unsigned
interrogatory responses (DX6, Doc. 136-7 (App. 310-17)), and three letters that
Williams had sent to various government agencies (DX2, Doc. 136-3; DX3, Doc.
136-4; DX4, Doc. 136-5 (App. 298-300)). In each of these unsworn documents,
Williams denied that Lenyszyn had been an officer of WSA—directly
contradicting his earlier sworn statement that Lenyszyn was both an officer and
minority owner. See Doc. 41-5 at 32, 34-35, 46 (Supp. 286, 288-89, 300). The
court deemed these documents inadmissible hearsay and declined to consider them
because Williams did not sign them under oath and under penalty of perjury (see
28 U.S.C. § 1746; Fed. R. Civ. P. 33(b)(3)). Order at 5-8.
13
Finally, the court held that Lenyszyn’s three remaining exhibits (part of a
purported bank statement, alleged printouts of text messages, and an incomplete
copy of a lease) had not been properly authenticated and were therefore
inadmissible and could not be used to support his opposition to the summary
judgment motion. Order at 4-6, 8, 11-12.
The court then turned to the evidence submitted by the FTC. It concluded
that the FTC had established beyond any genuine dispute that Lenyszyn and the
corporate defendants violated the Section 5 of the FTC Act, 15 U.S.C. § 45(a), and
Section 807 of the FDCPA, 15 U.S.C. § 1692e, by misrepresenting their identities
as debt collectors, their authority to collect debts, consumers’ obligations to pay
those debts, and the consequences of failure to pay. Order at 50-57, 62-63; see
also id. at 19-28, 31-33, 38-39, 41. The court held that Lenyszyn and the corporate
defendants also undisputedly violated the FDCPA by failing to make required
disclosures (see 15 U.S.C. §§ 1692e(11), 1692g) and by engaging in abusive
practices (see 15 U.S.C. §§ 1692c-1692d), such as calling consumers repeatedly at
work despite knowing those calls were inconvenient or prohibited. Order at 59-
64; see also id. at 28-32.
Next, the court ruled that Lenyszyn was liable not just for his own conduct,
but also for the corporate defendants’ violations during his tenure as managing
member. Order at 65-81. The FTC’s undisputed evidence showed that between
14
September 2013 and November 2014, Lenyszyn “either had the authority to
control the corporate Defendants or participated directly in the debt collection acts
and practices.” Order at 69-70; see also id. at 79-80. Lenyszyn failed to rebut
evidence that he (1) was a managing member and identified himself as such; (2)
provided the company with skip tracing services to “locate the consumers who
were later contacted by the collectors”; (3) attempted to help the company find a
new merchant account to process credit card payments; (4) provided WSA with “at
least one debt portfolio”; and (5) “act[ed] as a collector himself [by] making
numerous collection calls” as “Investigator Dan Miller.” Order at 70-71; see also
id. at 35-40. The uncontroverted evidence also showed that Lenyszyn’s
involvement with WSA continued when it resumed its fraudulent practices in July
2014 in Lenyszyn’s office space and contacted consumers using personal
information obtained through Lenyszyn’s skip tracing account. Order at 79-80; see
also id. at 40-41.
Additionally, the court concluded that Lenyszyn “had the requisite
knowledge [of wrongdoing] for individual liability” because, among other things,
he directly engaged in consumer fraud, served as an officer of the closely held
company, knew or should have known that the company was subject to cease-and-
desist actions in two states, and learned from a third party that the business was
“high risk.” Order at 71-74; see also id. at 36, 38-39, 42-43.
15
The district court drew an “adverse inference” against Lenyszyn because he
had pleaded the Fifth “with respect to virtually every substantive question that
34
counsel for the FTC asked him during his deposition.” Order at 47. The court
noted that this adverse inference did not automatically warrant summary judgment
against Lenyszyn, but the FTC had met its burden to establish each of its claims
through “independent evidence.” Order at 48.
The court imposed a permanent injunction and equitable monetary relief
against Lenyszyn. Order at 78-99. It held Lenyszyn jointly and severally liable for
the corporate defendants’ “net revenue from their illegal activities during the
period of [his] participation,” and directed him to pay $565,816.71 in monetary
relief. Order at 78-79, 86-87. Because the court found that Lenyszyn was
reasonably likely to violate the law in the future (Order at 80), it permanently
34
Specifically, Lenyszyn refused to testify about his role as managing member
(Doc. 121-35 at 14-23, Doc. 121-40 at 5-6 (Supp. 705-14, 795-96)); his sale of
debt portfolios to WSA (Doc. 121-35 at 28-31 (Supp. 715-18)); his receipt of
payments from WSA for those portfolios (Doc. 121-39 at 39-42 (Supp. 780-83));
his negotiations with CBC Innovis for skip tracing services (Doc 121-39 at 44-46
(Supp. 785-87)); his purchase of a TLO skip tracing license and decision to share
that license with WSA (Doc. 121-39 at 18-31, 49-51 (Supp. 759-72, 790-92)); his
receipt of payments from WSA for the TLO license (Doc. 121-39 at 33-39 (Supp.
774-80)); his efforts to obtain merchant accounts (Doc. 121-36 at 5-23 (Supp. 732-
50)); his personal involvement in debt collection and threats to prosecute
consumers (Doc. 121-35 at 45-57, Doc. 121-39 at 32-33 (Supp. 719-31, 773-74));
his signing of WSA’s office lease (Doc. 121-39 at 46-49 (Supp. 787-90)); or other
income he received from WSA (Doc. 121-39 at 43-44, Doc. 121-40 at 3-7 (Supp.
784-85, 793-97)).
16
enjoined him from engaging in debt collection (id. at 81-83), required him to
destroy all consumer information in his possession (id. at 84-85), and imposed
several monitoring, recordkeeping, and notification requirements (id. at 88-98).
Lenyszyn filed a timely notice of appeal. Doc. 148 (App. 548-50).
STANDARD OF REVIEW
1. The Court “review[s] a district court’s evidentiary rulings at the summary
judgment stage only for abuse of discretion.” Wright v. Farouk Sys., Inc., 701 F.3d
907, 910 (11th Cir. 2012). Such abuse occurs if the judge applies the wrong legal
standard, fails to follow proper procedures in making his or her decision, or bases
the decision on clearly erroneous findings of fact. FTC v. Washington Data Res.,
Inc., 704 F.3d 1323, 1326 (11th Cir. 2013).
2. The Court reviews a grant of summary judgment de novo. SEC v.
Monterosso, 756 F.3d 1326, 1333 (11th Cir. 2014). The Court “appl[ies] the same
legal standards” as the district court, and “construe[s] the facts and draw[s] all
reasonable inferences in the light most favorable to the non-moving party.” Id.
3. The Court reviews the district court’s order granting equitable monetary
relief for abuse of discretion. Washington Data Res., 704 F.3d at 1325; CFTC v.
Wilshire Inv. Mgmt., 531 F.3d 1339, 1343 (11th Cir. 2008).
17
SUMMARY OF ARGUMENT
Lenyszyn does not dispute that WSA systematically defrauded consumers in
violation of the FTC Act and the FDCPA. Nor does he deny that he is liable for
his conduct during April and May 2014, when he personally made collection calls
for WSA. Instead, he challenges only the court’s decision to hold him liable for
WSA’s practices during the period from September 2013 to November 2014 when
he was a managing member of WSA and directly participated in its fraud. His
arguments are meritless.
1. The district court properly concluded that the only evidence Lenyszyn
proffered in opposing summary judgment was inadmissible and thus could not
create a triable factual issue. The district court correctly prevented Lenyszyn from
relying on his own written statements, because he had refused to be examined on
those subjects during his deposition. The Fifth Amendment is not a stratagem for
litigants to provide a self-serving narrative that is shielded from cross-examination.
Additionally, the settled law in this Circuit is plain that a party may not resist
summary judgment with unsworn witness statements or unauthenticated “business
records.”
2. Lenyszyn identifies no genuine issue as to any material fact that would
preclude summary judgment regarding his personal liability for WSA’s
wrongdoing. The undisputed record shows that he served as a managing member,
18
personally engaged in fraudulent debt collection, and kept the fraud alive by
(among other things) obtaining lists of potential debtors, providing access to those
consumers’ sensitive personal information, and securing office space for the
operation. Lenyszyn had full knowledge that WSA’s business was unlawful. His
level of engagement and control makes him liable for all the harm he and WSA
caused.
3. The district court properly held Lenyszyn jointly and severally liable for
WSA’s net receipts during his time as an officer. This Court has repeatedly upheld
joint and several liability as a form of equitable monetary relief where multiple
parties act in concert to deceive consumers.
ARGUMENT
I. THE DISTRICT COURT CORRECTLY RULED LENYSZYN’S EXHIBITS

INADMISSIBLE AND REFUSED TO CONSIDER THEM.
The district court properly declined to consider each of the nine exhibits that
Lenyszyn filed in opposition to summary judgment. Lenyszyn had the burden to
rebut the FTC’s motion by “producing affidavits or other relevant and admissible
evidence beyond the pleadings.” Josendis v. Wall To Wall Residence Repairs, Inc.,
662 F.3d 1292, 1315 (11th Cir. 2011) (emphasis added); see also Corwin v. Walt
Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007) (“[E]vidence inadmissible at
trial cannot be used to avoid summary judgment.”) (quotation omitted); Fed. R.
Civ. P. 56(c)(1)-(2). His proffered evidence was not admissible.
19
A. The Court Properly Excluded Lenyszyn’s Written

Testimony Because He Asserted His Fifth Amendment
Rights To Avoid Cross-Examination On The Same Subjects.
Lenyszyn does not challenge, and therefore concedes, that the district court
properly ruled his affidavit (DX5, Doc. 136-6 (App. 301-05)) inadmissible. By
invoking his Fifth Amendment right not to testify, Lenyszyn decided that “the
advantages of silence—avoiding incrimination in a criminal investigation”
outweighed “the potential advantages” of attempting to refute the FTC’s evidence
against him. See Arango v. U.S. Dep’t of Treasury, 115 F.3d 922, 927 (11th Cir.
1997). Having made that choice, Lenyszyn could not then “convert the privilege
from [a] shield … into a sword” by putting his version of the facts into written
affidavits and avoiding cross-examination. See United States v. Rylander, 460
U.S. 752, 758, 103 S. Ct. 1548, 1553 (1983).
Although Lenyszyn does not challenge the district court’s refusal to consider
his principal affidavit, he nonetheless argues that the court should have considered
a sworn complaint form he filed with the State of Nevada (DX8, Doc. 136-9 (App.
325-27)), in which he claimed that he had never agreed to become a managing
member of WSA. Because the Nevada complaint asserts the same facts that
Lenyszyn refused to testify about at his deposition, the district court correctly
prevented him from using that complaint to manufacture a genuine factual issue
about his role at WSA. See Order at 9-10, 13-14.
20
Lenyszyn asserted his Fifth Amendment rights in response to virtually every
question at his deposition (see p. 16 n.34, supra), including the following:
 “Q. Now, when WSA, LLC, was formed you agreed that your name
could be placed on there as a managing member; isn’t that true?”
Doc. 121-40 at 5:16-5:19 (Supp. 795).
 “Q. So in order to apply for the merchant account in your own name,
you were aware that your name had been added to the WSA managing
member list that was filled out on March 14, 2014; isn’t that true?”
Doc. 121-36 at 12:16-12:22 (Supp. 739).
 “Q. And you’re identified [in an application for skip tracing services]
as the owner of WSA; isn’t that correct? … Q. So you allowed your
name to be used to obtain the skip tracing, didn’t you?” Doc. 121-39
at 44:23-45:3 (Supp. 785-86).
 “Q. You signed [the office lease] – that’s your signature where it says
Chris Lenyszyn; isn’t that correct? … And your title is managing
member; isn’t that correct?” Doc. 121-39 at 48:5-48:11 (Supp. 789).
Because Lenyszyn pleaded the Fifth when asked whether he was a managing
member, the district court correctly prevented him from resisting summary
judgment with the Nevada complaint, which contained written testimony
addressing that same question. Order at 9-10, 13-14. When, as here, a defendant
21
attempts to testify on matters subject to his or her Fifth Amendment plea, this
“frustrat[es] the [FTC’s] attempts to test the veracity of his claim.” United States
v. $133,420.00 in U.S. Currency, 672 F.3d 629, 642 (9th Cir. 2012) (district court
properly struck claimant’s interrogatory response on summary judgment because

35
he had invoked the Fifth Amendment regarding the same subjects). Thus,
Lenyszyn may not “invoke the Fifth Amendment to avoid discovery while offering
an affidavit to compel a certain result on summary judgment.” Edmond v.
Consumer Prot. Div. (In re Edmond), 934 F.2d 1304, 1308 (4th Cir. 1991); see
United States v. Parcels of Land, 903 F.2d 36, 43 (1st Cir. 1990) (upholding
district court’s decision to “strike [defendant’s] affidavit after he invoked the fifth
amendment and refused to answer the government’s deposition questions”).
Still, Lenyszyn argues that the court should have considered his Nevada
complaint because he filed it “before he was arrested” on criminal charges and (he
asserts) before his Fifth Amendment privilege was “triggered.” Br. 12-13
(emphasis in original). But he failed to raise this argument in the district court, and
has therefore waived it. See Four Seasons Hotels & Resorts, B.V. v. Consorcio
Barr S.A., 377 F.3d 1164, 1168-69 (11th Cir. 2004); see also Doc. 136 at 14 (App.
35
“By striking testimony that a party shields from cross-examination, a court can
respect the witness’s constitutional privilege against self-incrimination while
preventing the witness from using the privilege to ‘mutilate the truth a party offers
to tell.’” $133,420.00, 672 F.3d at 641 (quoting Brown v. United States, 356 U.S.
148, 156, 78 S. Ct. 622, 627 (1958)).
22
278) (response to summary judgment motion); Doc 143-1 at 2-4 (App. 441-43)
(surreply).
Moreover, the timing of Lenyszyn’s arrest has no bearing on whether the
district court properly excluded the Nevada complaint. What matters is that
Lenyszyn is attempting to offer a “testimonial statement” in the “same proceeding”
in which he “shielded his account of the ‘facts’ from scrutiny by invoking the fifth
amendment at his deposition.” See Parcels of Land, 903 F.2d at 43-44. Perhaps
equally important, Lenyszyn’s argument about timing makes no sense. He filed
his Nevada complaint in late October 2014, three months after the district court
entered a TRO (Docket No. 6) and FBI and FTC officials removed evidence from
WSA’s business premises (Doc. 121-30 at 2 (Supp. 548)), and one month after the
FTC added him as a defendant (Doc. 32 (App. 40-57)). By the time Lenyszyn
filed his Nevada complaint, the possibility of a criminal prosecution, and his right
to invoke the Fifth Amendment, were patently obvious. See United States v.
Balsys, 524 U.S. 666, 672, 118 S. Ct. 2218, 2222 (1998) (Fifth Amendment may
be invoked “in any proceeding …in which the witness reasonably believes that the
information sought … could be used in a subsequent … criminal proceeding”)
(quotation omitted). Lenyszyn prepared the Nevada complaint fully aware that his
statements might become evidence in a pending civil case and a potential criminal
23
case against him—and may have drafted the complaint hoping to ward off those
36
charges.
Finally, as the district court held, even if Lenyszyn’s Nevada complaint were
admissible, his assertion in that complaint that he did not know his name was on
corporate documents “does not directly refute any material fact” regarding his
personal liability for WSA’s fraudulent behavior. Order at 9. Regardless of
whether Lenyszyn knew he was a managing member on official government
documents, he does not rebut evidence that he held himself out as an owner or
officer in various settings. See pp. 7, 11, supra. In fact, he admits doing so. See
Doc. 136 at 13-14 (App. 277-78) (memorandum in response to summary judgment
motion). Nor does Lenyszyn’s opening brief rebut—or even address—other key
evidence of his role in WSA, including his provision of skip tracing services, his
solicitation of merchant accounts, and his leasing of office space for WSA’s use.
See pp. 6-7, 11, supra.
36
Lenyszyn mistakenly relies (at Br. 13) on United States v. Hubbell, 530 U.S.
27, 120 S. Ct. 2037 (2000). That case held that a subpoena for documents may
violate the Fifth Amendment if “the act of producing [those] documents” has a
“testimonial aspect” by “implicitly communicat[ing]” a self-incriminatory
message. 530 U.S. at 36-37; 120 S.Ct. at 2043-44. It did not address the
circumstances under which a witness may reasonably anticipate future prosecution.
24
B. The Court Properly Excluded Unsworn Statements By John

Williams.
The district court correctly refused to consider John Williams’s letters to the
FTC and two other government agencies (DX2, Doc. 136-3; DX3, Doc. 136-4;
DX4, Doc. 136-5 (App. 298-300)), and Williams’s interrogatory responses (DX6,
Doc. 136-7 (App. 310-17)), all of which claimed that Lenyszyn was not a
37
managing member of WSA. As the district court explained (Order at 5-7), these
documents were unsworn and did not declare under penalty of perjury that the facts
stated were true and correct. See 28 U.S.C. § 1746. Williams did not even sign his
interrogatory responses, as the Federal Rules require. See Fed. R. Civ. P. 33(b).
Courts need not consider unsworn witness statements when deciding a
motion for summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S.
144, 158-59 n.17 & n.19, 90 S. Ct. 1598, 1608-09 n.17 & n.19 (1970). The
Federal Rules require that affidavits “be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Unsworn
statements do not meet these requirements. Adickes, 398 U.S. at 158 n.17, 90 S.
Ct. at 1608 n.17; Bozeman v. Orum, 422 F.3d 1265, 1267 n.1 (11th Cir. 2005);
37
As discussed, Williams had previously certified under oath that Lenyszyn was
an officer and 25 percent owner of WSA, LLC. See Doc. 41-5 at 32, 34-35, 46
(Supp. 286, 288-89, 300).
25
Carr v. Tatangelo, 338 F.3d 1259, 1273 n.26 (11th Cir. 2003). They are thus
inadmissible hearsay when offered to prove the truth of the matter asserted.
Lenyszyn argues that Williams’s unsworn statements were admissible
because they are “statements against interest.” Br. 9-10. But he fails to mention
that this hearsay exception applies only when the “declarant is unavailable as a
witness.” Fed. R. Evid. 804(b)(3); see United States v. Costa, 31 F.3d 1073, 1077
(11th Cir. 1994). Lenyszyn does not claim that Williams was unavailable. To the
contrary, he concedes that Williams will be available to testify at trial. See Br. 10
(asserting that the statements in Williams’s unsigned interrogatory responses
“could all have been proven at trial through (1) the testimony of Mr. Williams
…”). Br. 10. Thus, the Rule 804(b)(3) hearsay exception does not apply and the
38
district court properly excluded Williams’s unsworn statements.
C. The Court Properly Excluded Unauthenticated Business

Records.
The district court also correctly refused to consider three unauthenticated
documents that Lenyszyn claimed as business records:
38
Even if Williams were unavailable to testify, Lenyszyn fails to explain how
Williams’s statements were against his personal interest. Lenyszyn simply asserts
that Williams’s “criminal exposure” would be reduced if “others were involve[d]
with WSA” (Br. 9-10), but he does not attempt to explain how or why this might
be so.
26
 Exhibit DX1 (Doc. 136-2 (App. 297)) appears to be a bank statement
reflecting a deposit of $880 in an unidentified person’s account.
Lenyszyn claims (at Br. 7-8) that the account belonged to him and that
the statement suggests that he made little money from WSA.
 Exhibit DX7 (Doc. 136-8 (App. 318-24)) appears to contain printouts
of text messages between two unidentified individuals. Lenyszyn
asserts (at Br. 11-12) that the conversations were between Williams
and himself and help establish that he did not give consent to become
an officer of WSA. The purported messages are dated October and
November 2014, shortly after the FTC added Lenyszyn to the

39
Complaint.
 Exhibit DX9 (Doc. 136-10 (App. 328-32)) purports to contain the
lease Lenyszyn signed on WSA’s behalf when it reopened using new
business names in contempt of the preliminary injunction. See p. 11,
supra. Unlike the properly authenticated version of the lease (see
Doc. 121-54 (Supp. 820-56)), Lenyszyn’s version is incomplete,
39
Even if the text messages were properly authenticated, they are unsworn
statements that constitute inadmissible hearsay. See pp. 25-26, supra. Lenyszyn’s
self-serving statements in those conversations are also inadmissible because they
address issues within the scope of his Fifth Amendment plea. See pp. 20-22,
supra.
27
contains pages out of order, and omits the pages identifying Lenyszyn
as a managing member.
Because Lenyszyn did not submit affidavits from a qualified witness
establishing the documents’ authenticity, they do not qualify for the business
records exception to the hearsay rule. See Fed. R. Evid. 803(6).
Lenyszyn has the “burden … to show that the material is admissible as
presented or to explain the admissible form that is anticipated.” Fed. R. Civ. P. 56
advisory committee notes (2010). The law in this Circuit is clear that a party
cannot avoid summary judgment with unauthenticated or improperly authenticated
business records. Compare First Nat’l Life Ins. Co. v. Cal. Pac. Life Ins. Co., 876
F.2d 877, 881 (11th Cir. 1989) (summary judgment “properly granted” because
nonmoving party’s exhibits were “not properly authenticated”), with Eli Lilly &
Co. v. Air Express Int’l USA, Inc., 615 F.3d 1305, 1317 (11th Cir. 2010) (district
court did not err when considering business records supported by an affidavit from
40
a person “qualified to testify concerning the documents”). Documentary exhibits
“must be properly authenticated as a condition precedent to their admissibility ‘by
evidence sufficient to support a finding that the matter in question is what its
40
See also Asociación de Periodistas de Puerto Rico v. Mueller, 529 F.3d 52, 57
(1st Cir. 2008) (district court properly excluded from summary judgment record a
DVD lacking “affidavits attesting to the DVD’s authenticity”).
28
proponent claims.’” United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir.
2000) (quoting Fed. R. Evid. 901(a)).
Nor should the Court credit Lenyszyn’s assertion (at Br. 7, 15) that he might
have been able to authenticate his exhibits at some future date before trial.
Lenyszyn misconstrues case law allowing district courts to consider on summary
judgment hearsay statements that ultimately could be “reduced to admissible
form.” See, e.g. McMillian v. Johnson, 88 F.3d 1573, 1584-85 (11th Cir. 1996).
This Court has explained that the term “reduced to admissible form” refers to
hearsay statements embedded within a witness’s sworn testimony. “We believe
that the courts have used the phrases ‘reduced to admissible evidence at trial’ and
‘reduced to admissible form’ to explain that the out-of-court statement made to the
… Rule 56(c) affiant or the deposition deponent … must be admissible at trial for
41
some purpose.” Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999). For
example, the district court may consider a witness’s sworn testimony about what a
third person told her, if the third person’s statement qualifies under an exception to
the hearsay rule.
Here, Lenyszyn has attempted to submit purported business records without
any sworn testimony demonstrating their authenticity. “To be admissible in
41
Macuba reaffirmed that, as a “general rule … inadmissible hearsay cannot be
considered on a motion for summary judgment.” 193 F.3d at 1322 (quotation
omitted).
29
support of or in opposition to a motion for summary judgment, a document must be
authenticated by and attached to an affidavit that meets the requirements of Rule
56(e) [now 56(c)(4)] and the affiant must be a person through whom the exhibits
could be admitted into evidence.” Saunders v. Emory Healthcare, Inc., 360 F.
App’x 110, 113 (11th Cir. 2010) (citing 10A Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure § 2722 at 382-84 (3d ed.
1998)). The mere “possibility” that a witness “will emerge to provide testimony”
authenticating Lenyszyn’s exhibits is “insufficient to establish that the hearsay
statement[s] could be reduced to admissible evidence.” See Jones v. UPS Ground
Freight, 683 F.3d 1283, 1294 (11th Cir. 2012).
Finally, Lenyszyn incorrectly suggests (at Br. 7) that his unauthenticated
bank statement “may well have been admissible under the residual hearsay
exception” of Fed. R. Evid. 807. That exception applies only when a statement is
“not specifically covered” by another exception and “has equivalent circumstantial
guarantees of trustworthiness.” Id.; see United Techs. Corp. v. Mazer, 556 F.3d
1260, 1279 (11th Cir. 2009) (“Congress intended the residual hearsay exception to
be used very rarely, and only in exceptional circumstances … and … only when
certain exceptional guarantees of trustworthiness exist….”) (citation and quotation
30
omitted). It does not permit reliance on unauthenticated documents, which lack

42
any guarantees of trustworthiness.
II. THE DISTRICT COURT CORRECTLY GRANTED SUMMARY JUDGMENT

AND HELD LENYSZYN PERSONALLY LIABLE FOR WSA’S
VIOLATIONS.
The district court’s grant of summary judgment against Lenyszyn was
proper. Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “Once the movant adequately supports its
motion, the burden shifts to the nonmoving party to show that specific facts exist
that raise a genuine issue for trial.” Dietz v. Smithkline Beecham Corp., 598 F.3d
812, 815 (11th Cir. 2010); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S. Ct. 2505, 2510 (1986). “[O]nly the existence of a genuine issue of material
fact will preclude grant of summary judgment.” Allen v. Bd. of Pub. Educ. for
Bibb Cty., 495 F.3d 1306, 1313 (11th Cir. 2007). An issue is genuine if “a
reasonable [factfinder] could return a verdict for the nonmoving party,” and is
material “if it may affect the outcome of the suit under governing law.” Id.
42
Lenyszyn mistakenly asserts (at Br. 7) that the court in United States v.
Ismoila, 100 F.3d 380, 393 (5th Cir. 1996), applied the residual hearsay exception
to admit unauthenticated “bank statements.” The documents at issue were
statements from cardholders notifying their banks that their credit cards had been
stolen, and bank personnel testified to authenticate them. See id. at 390-93 & n.8.
31
Here, the undisputed record shows that Lenyszyn is personally liable for
WSA’s violations between September 2013 and November 2014, when he was a
managing member. See Order at 65-75, 79-80.
A. Lenyszyn Is Personally Liable Under Established Law.
An individual is liable for a corporation’s violations of the FTC Act when he
or she “participated directly in the [deceptive] practices or acts or had authority to
control them.” FTC v. IAB Mktg. Assocs., LP, 746 F.3d 1228, 1233 (11th Cir.
2014) (quoting FTC v. Amy Travel Serv., Inc., 875 F.2d 564, 573 (7th Cir. 1989));
see also FTC v. Gem Merch. Corp., 87 F.3d 466, 470 (11th Cir. 1996). Lenyszyn
satisfies both tests. He participated directly in WSA’s violations by holding
himself out as “Investigator Dan Miller” and fraudulently threatening to arrest
consumers or revoke their driver’s licenses unless they paid off bogus debts. See
p. 8, supra. And he perpetuated the fraud by equipping WSA with debtor accounts
and skip tracing services and attempting to obtain merchant accounts. See pp. 6-7,
11, supra. These services were essential for WSA to locate, deceive, and take
money from vulnerable consumers. Lenyszyn was thus a key participant in WSA’s
fraudulent scheme during the relevant period.
The evidence of Lenyszyn’s ability to control WSA is overwhelming and
unrebutted. He was a managing member who held himself out as an officer or
owner on several key documents. See pp. 6-7, 11, supra. This, in itself,
32
establishes control. See, e.g., FTC v. Publ’g Clearing House, Inc., 104 F.3d 1168,
1170-71 (9th Cir. 1997) (corporate officer with authority to sign documents had the
“requisite control over the corporation”); Amy Travel Serv., 875 F.2d at 573
(“Authority to control the company can be evidenced by active involvement in
business affairs … including assuming the duties of a corporate officer.”).
Additionally, when assessing Lenyszyn’s corporate control, any “gaps” in
his responsibilities are irrelevant. “The question is whether he could have nipped
the offending [conduct] in the bud.” FTC v. Direct Mktg. Concepts, Inc., 624 F.3d
1, 13 (1st Cir. 2010). Here, rather than stopping the fraudulent conduct, Lenyszyn
was a key participant in the fraud. Among other things, he provided office space,
lists of debtors, and the means to locate and learn sensitive information about them.
See pp. 6-7, 11, supra.
Lenyszyn also had “knowledge of the [wrongful] practices,” the final
predicate for holding an individual monetarily liable for corporate wrongdoing.
See IAB Mktg. Assocs., 746 F.3d at 1233 (quoting Amy Travel Serv., 875 F.2d at
573). The FTC can meet this requirement by showing “actual knowledge of
material misrepresentations, reckless indifference to the truth or falsity of such
misrepresentations, or an awareness of a high probability of fraud along with an
intentional avoidance of the truth.” Amy Travel Serv., 875 F.2d at 574 (quotation
33
omitted). Lenyszyn’s “participation in business affairs” as managing member “is
probative of knowledge.” See id. at 574.
Here, Lenyszyn plainly knew that WSA was defrauding consumers by
collecting on fake debts—he engaged in this practice himself. See p. 8, supra.
And he confronted an important red flag when WSA received orders from Nevada
and Colorado to cease and desist from collecting debts without a license. See p. 9,
supra. He also knew that WSA had a high chargeback rate and that the payment
processing industry considered its business model “high risk” (see pp. 8-9, supra),
which provided further grounds to suspect that WSA was cheating consumers. See
Amy Travel Serv., 875 F.2d at 574-75 (high chargeback rate put officers on notice
of misrepresentations).
B. Lenyszyn Has Not Established A Genuine Factual Dispute.
Lenyszyn makes three arguments against summary judgment, all meritless.
First, he contends that the district court should have denied summary judgment by
assuming his answer to the complaint and other judicial pleadings were true. Br.
17-18. But once the FTC met its initial burden to show the lack of a genuine
dispute, Lenyszyn, as “the non-moving party[,] must then ‘go beyond the
pleadings,’ and by [his] own affidavits, or by ‘depositions, answers to
interrogatories, and admissions on file,’ designate specific facts showing that there
is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-
34
94 (11th Cir. 1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324; 106 S.
Ct. 2548, 2553 (1986)) (emphasis added). It is irrelevant that Lenyszyn allegedly
43
drafted his answer pro se. Lenyszyn’s attorneys prepared his opposition to
summary judgment, and those papers offered no admissible evidence to support his
defenses. His “pleadings are only allegations, and allegations are not evidence of
the truth of what is alleged.” Wright v. Farouk Sys., Inc. 701 F.3d 907, 911 n.8
(11th Cir. 2012). They do not create a genuine dispute of material fact.
Second, although Lenyszyn did not file any admissible affidavits, he
speculates that, at trial, he might receive favorable “testimony by non-party
witnesses such as Susan Williams and Margarita Yearwood.” Br. 10. But
Lenyszyn’s papers opposing summary judgment did not even mention these
individuals, let alone include sworn statements from them. Doc. 136 (App. 265-
92) (response); Doc. 143-1 (App. 440-46) (surreply). Lenyszyn’s naked
“suggestion that admissible evidence might be found in the future is not enough to
defeat a motion for summary judgment.” McMillian, 88 F.3d at 1584.
43
Lenyszyn’s attorneys were actively involved in his defense long before filing
their appearances in September 2015. For example, they participated in the
December 2014 negotiations to modify the preliminary injunction and asset freeze
(Doc. 80 at 3 (Supp. 438)), and advised Lenyszyn during his April and May 2015
depositions (Doc. 121-35 at 5-6 (Supp. 701-02); Doc. 121-39 at 7-10 (Supp. 755-
58)). See also Doc. 121-35 at 10:24-11:2 (Supp. 703-04) (“MR. LOTITO: I have
been advising [Lenyszyn] even though he’s appearing pro se. I haven’t entered an
appearance, but I have been advising him during the course of these
proceedings.”).
35
Third, Lenyszyn asserts—without citing any authority—that he cannot be
personally liable for WSA’s wrongdoing because he did not make capital
44
contributions. Br. 15-16. That is not the test for personal liability for corporate
wrongdoing. The FTC Act imposes such liability when a defendant participates in,
or is able to control, corporate wrongdoing regardless of the person’s status as an
owner or investor. For instance, in Publishing Clearing House, the Ninth Circuit
held a telemarketer personally liable when she became company president “at the
direction of” a person facing criminal charges who thought it would be best to
apply for a business license in that telemarketer’s name. 104 F.3d at 1169-71. See
also FTC v. World Media Brokers, 415 F.3d 758, 765-66 (7th Cir. 2005)
(upholding liability of an officer who “should have known” of wrongdoing, with
no mention of whether she was an owner).
Thus, the district court was plainly correct when it held that there are no
triable issues concerning Lenyszyn’s personal liability for WSA’s violations. His
refusal to testify on virtually all relevant issues only bolsters this conclusion. See
p. 16 n.34, supra. “[T]he Fifth Amendment does not forbid adverse inferences
against parties to civil actions when they refuse to testify in response to probative
44
Notably, however, Lenyszyn invoked the Fifth Amendment in response to
virtually every financial question at his deposition. See, e.g., Doc. 121-39 at
33:15-44:5 (Supp. 774-85) (regarding financial transactions between him and
WSA); Doc. 121-40 at 3:14-4:16, 6:18-7:3 (Supp. 793-94, 796-97) (concerning
why income from WSA does not appear on his tax returns).
36
evidence offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.
Ct. 1551, 1558 (1976); see SEC v. Monterosso, 756 F.3d 1326, 1336 n.19 (11th
Cir. 2014) (affirming summary judgment in SEC’s favor and “not[ing] the
evidence of scienter is reinforced by the adverse inference from [defendant’s]
invocation of the Fifth Amendment privilege at his deposition”).
III. THE DISTRICT COURT PROPERLY EXERCISED ITS DISCRETION IN

IMPOSING JOINT AND SEVERAL LIABILITY.
The district court properly held Lenyszyn jointly and severally liable for the
$565,816.71 WSA unlawfully collected from consumers when he was a managing
member. Order at 78-79, 86-87. Section 13(b) of the FTC Act, 15 U.S.C. § 53(b),
permits district courts to order “the full range of equitable remedies, including the
power to grant consumer redress and compel the disgorgement of profits.” Gem
Merch., 87 F.3d at 468. Disgorgement under Section 13(b) is measured by the
defendants’ “net revenue (gross receipts minus refunds).” FTC v. Washington
Data Res., Inc., 704 F.3d 1323, 1327 (11th Cir. 2013).
Lenyszyn’s only argument (at Br. 19-22) is that the district court should
have limited its disgorgement award to the amount he personally received. But
this Court has repeatedly upheld joint and several liability against culpable
individuals, such as Lenyszyn, who bear personal responsibility for corporate
violations of the FTC Act. See IAB Mktg. Assocs., 746 F.3d at 1233-34;
Washington Data Res., 704 F.3d at 1325-27; Gem Merch., 87 F.3d at 468-70.
37
Equity dictates that when a specific defendant is unable to pay its share of the
judgment, “joint and several liability makes the other defendants, rather than an
innocent plaintiff, responsible for the shortfall.” McDermott, Inc. v. AmClyde, 511
U.S. 202, 221, 114 S. Ct. 1461, 1471 (1994). This Court, in a recent SEC
enforcement matter, explained that “a personal financial benefit is not a
prerequisite for joint and several liability” when the defendants “acted in concert”
45
to violate the law. Monterosso, 756 F.3d at 1337-38 (quotation omitted). The
same principles apply under the FTC Act. As the Ninth Circuit recently
confirmed, courts may hold defendants liable for “the unjust gains [they]
collectively received” from violating the FTC Act, not merely the amount each
“personally received from the wrongful conduct.” FTC v. Commerce Planet, Inc.,
815 F.3d 593, 601 (9th Cir. 2016).
Finally, even if a defendant’s lack of personal revenue were relevant to the
question of relief, Lenyszyn prevented the FTC from understanding his revenue
here by pleading the Fifth when asked about cash and other payments he received
from Williams and WSA. See p. 36 n.44, supra.
45
Likewise, this Court has explained that “joint and several liability is
appropriate in securities laws cases where two or more individuals or entities have
close relationships in engaging in illegal conduct … even where one defendant is
more culpable than another.” See SEC v. Calvo, 378 F.3d 1211, 1215 (11th Cir.
2004).
38
CONCLUSION
The judgment of the district court should be affirmed.
Respectfully submitted,
DAVID C. SHONKA
Acting General Counsel
JOEL MARCUS
Director of Litigation
July 7, 2016 /s/ Bradley Grossman

BRADLEY GROSSMAN
Attorney
FEDERAL TRADE COMMISSION
Office of the General Counsel
600 Pennsylvania Avenue, N.W.
Washington, D.C. 20580
(202) 326-2994
[email protected]
Of Counsel:
ROBIN L. ROCK
Attorney
FEDERAL TRADE COMMISSION
Atlanta, Georgia 30303
39
CERTIFICATE OF COMPLIANCE
I certify that the foregoing brief complies with the volume limitations of
Fed. R. App. P. 32(a)(7)(B) because it contains 9,275 words, excluding the parts of
the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and that it complies with
the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style
requirements of Fed. R. App. P. 32(a)(6) because it was prepared using Microsoft
Word 2010 in 14 point Times New Roman type.
July 7, 2016 /s/ Bradley Grossman

Bradley Grossman
Attorney
Federal Trade Commission
600 Pennsylvania Avenue, N.W.
Washington, D.C. 20580
CERTIFICATE OF SERVICE
I certify that on July 7, 2016, I served the foregoing on the following counsel
of record for appellant Chris Lenyszyn using the Court’s electronic case filing
system and by FedEx. All counsel of record are registered ECF filers.
Nicholas A. Lotito
Davis, Zipperman, Kirschenbaum & Lotito, LLP
918 Ponce de Leon Avenue, NE
[email protected]
Jeffrey S. Bazinet
Peters & Monyak, LLP
One Atlanta Plaza, Suite 2275
950 East Paces Ferry Road, NE
[email protected]
Dated: July 7, 2016 /s/ Bradley Grossman

Bradley Grossman
Attorney
Office of the General Counsel
Federal Trade Commission
600 Pennsylvania Avenue NW
Washington, DC 20580
(202) 326-2994 (telephone)
(202) 326-2477 (facsimile)
[email protected]

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Case: 16-10063 Date Filed: 07/07/2016 Page: 1 of 52

IN THE UNITED STATES COURT OF APPEALS

Eleventh Circuit Rule 26.1 Certificate of Interested Persons

Bazinet, Jeffrey S. – Counsel for Appellant

Bryan Cave LLP – Counsel for court-appointed receiver

Couillou, Christopher – Assistant Director, FTC Southeast Region

Davis, Zipperman, Kirschenbaum & Lotito, LLP – Counsel for Appellant

Federal Trade Commission – Appellee

Fuqua, Michael – Court-appointed receiver

GlassRatner Advisory & Capital Group, LLC – Firm employing court-appointed

Grossman, Bradley D. – Counsel for FTC

Korschun, H. Marshall – Counsel for Appellant

Lenyszyn, Christopher – Appellant

Liebes, Cindy A. – Director, FTC Southeast Region

Lotito, Nicholas A. – Counsel for Appellant

Marcus, Joel – FTC Director of Litigation

Mateo, Marcela Claudia – Former counsel for FTC

Murphy, Harold L. (Hon.) – United States District Judge

Nuechterlein, Jonathan E. – Former FTC General Counsel

Odom, Jennifer D. – Counsel for court-appointed receiver

Parrington, Danielle C. – Counsel for court-appointed receiver

Peters & Monyak LLP – Counsel for Appellant

Rock, Robin L. – Counsel for FTC

Shonka, David C. – Acting FTC General Counsel

Sterling Ross Payment Systems LP – Georgia limited partnership, affiliate of

Warrant Services Administration – Assumed business name used by WSA, LLC

Williams, John – Defendant below

WSA, LLC – Defendant below, a Nevada limited liability company

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

outcome of this case or appeal.

STATEMENT REGARDING ORAL ARGUMENT

Statement Regarding Oral Argument .........................................................................i

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

Questions Presented ................................................................................................... 1

Statement of the Case................................................................................................. 2

A. The WSA Debt Collection Scheme ............................................................. 2

B. Lenyszyn’s Role In WSA ............................................................................ 6

C. Lenyszyn Helped WSA Defy A Preliminary Injunction ............................. 9

D. The FTC’s Action Against Lenyszyn And The Court’s

Standard of Review .................................................................................................. 17

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

I. The District Court Correctly Ruled Lenyszyn’s Exhibits

A. The Court Properly Excluded Lenyszyn’s Written Testimony

B. The Court Properly Excluded Unsworn Statements By John

C. The Court Properly Excluded Unauthenticated Business

II. The District Court Correctly Granted Summary Judgment And

A. Lenyszyn Is Personally Liable Under Established Law. ............................. 32

III. The District Court Properly Exercised Its Discretion In Imposing

Conclusion ............................................................................................................... 39

Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct.

Arango v. U.S. Dep’t of Treasury, 115 F.3d 922 (11th

Asociación de Periodistas de Puerto Rico v. Mueller, 529

Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551

Bozeman v. Orum, 422 F.3d 1265 (11th Cir. 2005) ................................................25

Brown v. United States, 356 U.S. 148, 78 S. Ct. 622

Carr v. Tatangelo, 338 F.3d 1259 (11th Cir. 2003) ................................................26

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548

CFTC v. Wilshire Inv. Mgmt., 531 F.3d 1339 (11th Cir.

Corwin v. Walt Disney Co., 475 F.3d 1239 (11th Cir.

Dietz v. Smithkline Beecham Corp., 598 F.3d 812 (11th

Edmond v. Consumer Prot. Div. (In re Edmond), 934