Federal Trade Commission v. Hi-Tech Pharmaceuticals, Inc. ( 2019 )


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  •               Case: 17-15695    Date Filed: 09/18/2019    Page: 1 of 27
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 17-15695
    ________________________
    D.C. Docket No. 1:04-cv-03294-CAP
    FEDERAL TRADE COMMISSION,
    Plaintiff - Counter Defendant - Appellee,
    CERTUSBANK, N.A.,
    Plaintiff,
    versus
    NATIONAL UROLOGICAL GROUP, INC.,
    d.b.a. Warner Laboratories, et al.,
    Defendants - Counter Claimants,
    HI-TECH PHARMACEUTICALS, INC.,
    corporations,
    JARED WHEAT,
    individually and as officers of the corporations,
    STEPHEN SMITH,
    individually and as officers of National Urological Group,
    Inc., and National Institute for Clinical Weight Loss, Inc.,
    Defendants - Appellants,
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    THOMASZ HOLDA,
    individually and as officers of the corporations, et al.,
    Defendants.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    ________________________
    (September 18, 2019)
    Before MARTIN, ROSENBAUM, Circuit Judges, and MARTINEZ,∗ District
    Judge.
    PER CURIAM:
    The defendants in this case were enjoined from making certain claims about
    health products without “competent and reliable scientific evidence” to substantiate
    those claims. The Federal Trade Commission (“FTC”) alleged that they violated the
    injunction when they publicized the weight- and fat-loss benefits of the four products
    at issue in this case. After a bench trial, the district court agreed with the FTC and
    found the defendant in civil contempt. The district court consequently imposed
    approximately $40 million in sanctions.
    Upon review, we conclude that the defendants have waived their challenge to
    the facial clarity of the injunction and that the district court committed no abuse of
    ∗ Honorable Jose Martinez, United States District Judge for the Southern District of Florida,
    sitting by designation.
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    discretion. Accordingly, we affirm the district court’s order of contempt and entry
    of sanctions.
    I. BACKGROUND
    A. Initial Entry of the Injunction at Issue
    Hi-Tech Pharmaceuticals, its chief executive officer (“CEO”), Jared Wheat,
    and its head of sales, Stephen Smith (collectively, “the defendants”), sold dietary
    supplements that advertised weight- and fat-loss benefits. They promised that one
    of their products, Thermalean, would help consumers lose “as much as 30 pounds in
    two months,” and that another product, Lipodrene, was “clinically proven to enable
    users to lose up to 42% of total body fat.” In 2004, the FTC charged the defendants
    with falsely advertising those products, in violation of Sections 5 and 12 of the FTC
    Act, 15 U.S.C. §§ 45(a) and 52.
    The district court granted summary judgment for the FTC. F.T.C. v. Nat’l
    Urological Grp., Inc., 
    645 F. Supp. 2d 1167
    , 1215 (N.D. Ga. 2008), aff’d, 356 F.
    App’x 358 (11th Cir. 2009). Claims about the safety and efficacy of dietary
    supplements, the district court noted, “must be substantiated with competent and
    reliable scientific evidence.” 
    Id. at 1202.
    The FTC’s guide for advertisers defined
    “competent and reliable scientific evidence” as “tests, analyses, research, studies, or
    other evidence based on the expertise of professionals in the relevant area, that have
    been conducted and evaluated in an objective manner by persons qualified to do so,
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    using procedures generally accepted in the profession to yield accurate and reliable
    results.” 
    Id. at 1190
    (citation and quotation marks omitted).
    The district court agreed with the FTC’s expert, Dr. Louis Aronne, that to
    satisfy the FTC’s definition of “competent and reliable scientific evidence”
    supporting weight- and fat-loss claims regarding any product, randomized clinical
    trials (“RCTs”) on the advertised products are necessary. See 
    id. at 1202.
    As the
    defendants had not conducted any RCTs on Thermalean or Lipodrene, the district
    court concluded that the defendants’ weight- and fat-loss claims about those
    products were unfounded.
    In its motion for summary judgment, the FTC had attached the proposed text
    of a permanent injunction against the appellants. Sections II and VII of the proposed
    injunction banned the defendants from making unsubstantiated claims, meaning they
    were to refrain from making any representation about the safety, efficacy, or health
    or weight-loss benefits of dietary supplements unless, “at the time the representation
    is made, [they] possess and rely upon competent and reliable scientific evidence that
    substantiates the representation.” (emphasis added). The proposed injunction
    adopted the definition for “competent and reliable scientific evidence” from the
    FTC’s advertising guide.
    Complaining of “space limitations,” the defendants indicated that they would
    not object to the proposed injunction in their opposition to summary judgment. They
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    instead requested “that they be given further opportunity” to voice their objections
    later. The district court granted the defendants’ request. Nat’l Urological Grp., 
    Inc., 645 F. Supp. 2d at 1215
    .
    And the defendants took advantage of their second chance. They objected to
    several provisions in the proposed injunction, including the definition of several
    terms, like “[c]overed product or service,” “drug,” or “manufacturing.” Notably,
    though, they did not object to the use of the phrase “competent and reliable scientific
    evidence.”
    After overruling the defendants’ objections, the district court entered a
    permanent injunction against them. Just as the proposed injunction had, Sections II
    and VII of the final injunction prohibited the defendants from making fat- and
    weight-loss claims about covered products unless, at the time of the representation,
    the defendants relied on “competent and reliable scientific evidence that
    substantiates the representation.” That phrase was defined by reference to the FTC’s
    advertising guide, as it had been during the litigation.
    The defendants appealed to this Court, raising a host of arguments. But again,
    significantly, they did not argue that the phrase “competent and reliable scientific
    evidence” was unclear. A different panel of this Court rejected the defendants’
    arguments and affirmed the district court. F.T.C. v. Nat’l Urological Grp., Inc., 356
    F. App’x 358, 359 (11th Cir. 2009).
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    B. Contempt
    The ink had hardly dried on filings from the first injunction case when the
    defendants started a new marketing campaign in 2009. This time, they touted the
    fat- and weight-loss benefits of four products—a reformulated version of Lipodrene,
    Fastin, Benzedrine, and Stimerex-ES. For example, advertisements for Lipodrene
    warned users not to consume the product unless “fat loss and weight loss are your
    intended result”; advertisements for Fastin boasted that it was an “Extreme Fat
    Burner”; those for Benzedrine claimed that it would “annihilate . . . fat”; and
    advertisements for Stimerex-ES told users that this was a product “for those who
    want their fat-burner to light them up all day as their pounds melt away.”
    The FTC moved for an order to show cause why the defendants should not be
    held in contempt for marketing those four products without proper substantiation, in
    violation of their injunction. F.T.C. v. Nat’l Urological Grp., Inc., 
    785 F.3d 477
    ,
    479-80 (11th Cir. 2015). In response, the defendants argued that they had fully
    complied with the injunction. 
    Id. at 481.
    Contending that RCTs on the products at
    issue were not required, the defendants offered other types of evidence that they
    claimed were competent and reliable scientific evidence to support their claims.
    The FTC disagreed and pointed to several communications that revealed the
    defendants’ knowledge that the injunction could require them to conduct RCTs on
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    the advertised products.1 In one email, Hi-Tech’s attorneys informed Wheat that
    “competent and reliable scientific evidence,” as used in the injunction, meant RCTs
    on the marked product:
    [I]t is safe to say that Judge Pannell did not then and would
    not now find this form of ingredient specific substantiation
    to be consistent with the express language in the FTC
    Injunction requiring “competent and reliable scientific
    evidence.” Rather, based upon Judge Pannell’s previous
    findings, it is reasonable to assume that he would take a
    position consistent with the FTC that double-blind,
    clinical trials of the products were necessary to
    substantiate the representation. Although we certainly
    have not and do not now agree with this position, at
    present, it is the premise upon which the FTC Injunction
    is based.
    Wheat certainly heard his attorneys’ advice, telling another Hi-Tech employee that
    “[his attorney’s] opinion is anything short of a double-blind study on each product
    leaves [Hi-Tech] open to exposure to FTC.” But, Wheat said, “[he] s[i]mply [could]
    not quit advertising.”
    The district court agreed with the FTC. Observing that the issue of what
    constituted “competent and reliable scientific evidence” in this context had already
    been determined to be RCTs on the products themselves, the district court held that,
    under the doctrine of collateral estoppel, only RCTs on the marketed products could
    1
    Wheat was incarcerated from March 16, 2009, to September 15, 2010. The FTC acquired
    communications sent between Wheat and other parties while he was in jail. The district court ruled
    that those communications were admissible, and the defendants do not challenge their
    admissibility on appeal.
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    count. Thus, the district court refused to consider the defendants’ proffered evidence
    and granted the FTC’s motion to show cause. Nat’l Urological Grp., Inc., 
    785 F.3d 481
    .
    After the defendants could not produce RCTs to support their claims, the
    district court found them in contempt for violating the injunction.           
    Id. It consequently
    held the defendants jointly and severally liable for about $40 million
    of sanctions, which reflected the defendants’ total gross receipts from the sales of
    Fastin, Lipodrene, Benzedrine, and Stimerex-ES. 
    Id. The defendants
    then appealed to this Court, arguing that nothing within the
    four corners of the injunction automatically equated “competent and reliable
    scientific evidence” with RCTs. They clarified that they were not arguing that the
    “competent and reliable scientific evidence” standard was so facially unclear as to
    render the injunction unenforceable. Rather, they disputed only the notion that
    “competent and reliable scientific evidence” had to mean RCTs:
    [T]he Contempt Defendants do not argue that the
    substantiation standard is, in and of itself, impermissibly
    vague. They do contend, however, that it is not
    sufficiently specific—without resort to documents beyond
    the four corners of the injunction—to require Contempt
    Defendants to produce double-blind, placebo-controlled
    clinical trials of their products to substantiate all future
    weight-loss claims.
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    Brief of Appellants at 39, F.T.C. v. Nat’l Urological Grp., Inc., 
    785 F.3d 477
    (11th
    Cir. 2015) (No. 14-13131).2
    And when the FTC nonetheless pointed out that any challenge to the facial
    clarity of the injunction had been waived, the defendants criticized the FTC for
    missing the point. The defendants repeated that they were not challenging the facial
    validity of the injunction, only the notion that “competent and reliable scientific
    evidence,” without any discussion, had to mean RCTs:
    [T]he FTC opens its brief by arguing that the injunction
    contains “reasonable detail” and that the competent-and-
    reliable-scientific-evidence standard “is sufficiently clear
    to enforce” and impose the unwritten randomized-clinical-
    trials requirement on Contempt Defendants. Contempt
    Defendants, the FTC says, have “already litigated and
    lost” a challenge to the vagueness of the injunction.
    That argument is beside the point. The Contempt
    Defendants, as they explained in their opening brief (at
    39), are not arguing that the “the ‘context specific’
    substantiation standard may create unreasonable
    ambiguity on the face of the injunction.” Instead, they
    argue that the FTC cannot carry its burden to show that the
    competent-and-reliable-scientific-evidence        standard
    clearly and unambiguously requires them to have
    randomized, double-blind, placebo-controlled clinical
    studies to substantiate their claims.
    Reply Brief of Appellants at 7, F.T.C. v. Nat’l Urological Grp., Inc., 
    785 F.3d 477
    (11th Cir. 2015) (No. 14-13131) (citations omitted).
    2
    Smith adopted Wheat and Hi-Tech’s arguments here. Opening Brief for Appellant Smith
    at 5, F.T.C. v. Nat’l Urological Grp., Inc., 
    785 F.3d 477
    (11th Cir. 2015) (No. 14-13131).
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    We determined that the district court had erred when it applied the doctrine of
    collateral estoppel to hold that the “competent and reliable scientific evidence”
    standard automatically required RCTs. Nat’l Urological Grp., 
    Inc., 785 F.3d at 482
    .
    We remanded to the district court with instructions to “make findings about whether
    any evidence of substantiation, if admissible, satisfies the standard of the injunctions
    for ‘competent and reliable scientific evidence.’” 
    Id. at 483.
    Before concluding, we
    emphasized that our holding was “only that the district court misapplied collateral
    estoppel when it barred [the defendants] from presenting evidence to prove their
    compliance with the injunctions.” 
    Id. C. Bench
    Trial on Remand
    After conducting a bench trial, the district court determined that the FTC had
    shown by clear and convincing evidence that the defendants lacked competent and
    reliable scientific evidence to substantiate their claims.         The district court
    consequently found the defendants in contempt and re-imposed the sanction of
    approximately $40 million on the defendants.
    The defendants appealed. Wheat and Hi-Tech filed their own appeal,
    primarily to challenge the facial validity of the injunction. Alternatively, Wheat and
    Hi-Tech argue that the district court’s finding that they lacked competent and reliable
    scientific evidence was clearly erroneous. Smith filed a separate appeal, adopting
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    Wheat and Hi-Tech’s arguments but also arguing that he lacked the ability to comply
    with the injunction.
    We hold that the defendants have waived their challenge to the clarity of the
    injunction. We also conclude that the district court did not abuse its discretion in
    finding that the defendants lacked competent and reliable scientific evidence to
    substantiate the relevant claims and in imposing the order of contempt. Accordingly,
    we affirm the district court.
    II. STANDARD OF REVIEW
    We must affirm the district court’s judgment of civil contempt unless we find
    that the court abused its discretion. Howard Johnson Co. v. Khimani, 
    892 F.2d 1512
    ,
    1516 (11th Cir. 1990). We review any underlying factual findings for clear error,
    Jove Eng’g, Inc. v. I.R.S., 
    92 F.3d 1539
    , 1545 (11th Cir. 1996), and we review any
    legal rulings de novo, Ala. v. Ctrs. For Medicare & Medicaid Servs., 
    674 F.3d 1241
    ,
    1244 n.2 (11th Cir. 2012).
    III. DISCUSSION
    The petitioning party has the initial burden in a civil-contempt case to clearly
    and convincingly show the district court that (1) the injunction was valid and lawful;
    (2) the order was clear, definite, and unambiguous; and (3) the contempt defendant
    had the ability to comply with the order (but did not do so). McGregor v. Chierico,
    
    206 F.3d 1378
    , 1383 (11th Cir. 2000). Once this prima facie showing is made in the
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    district court, the burden shifts to the defendants to explain their noncompliance. See
    F.T.C. v. Leshin, 
    618 F.3d 1221
    , 1232 (11th Cir. 2010). In the civil-contempt
    context, “substantial, diligent, or good faith efforts are not enough; the only issue is
    compliance.” 
    Id. With these
    principles in mind, we examine the defendants’ arguments that the
    district court abused its discretion by holding them in contempt.
    A. The defendants have waived any objection to the clarity of the
    injunction.
    The defendants’ chief argument on appeal is that the injunction is too
    ambiguous to be enforced. They contend that that the “competent and reliable
    scientific evidence” standard and its accompanying definition are unclear, in
    violation of Fed. R. Civ. P. 65(d), which states that an injunction should “describe
    in reasonable detail” what is required without referring to another document. Fed.
    R. Civ. P. 65. Their argument, however, has been squarely foreclosed by McComb
    v. Jacksonville Paper Co., 
    336 U.S. 187
    (1949), where the Supreme Court illustrated
    the common-sense lesson that a defendant cannot defeat an injunction by employing
    the following formula:       (1) staying silent about purported ambiguities; (2)
    deliberately engaging in activities that risk violating the injunction; and (3) pleading
    ignorance after those risky activities are indeed found to violate the injunction.
    McComb was a civil-contempt case. 
    McComb, 336 U.S. at 189
    . In 1943, the
    district court entered a decree ordering the defendants there to comply with the Fair
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    Labor Standards Act (“FLSA”) by (1) paying certain employees a minimum wage,
    (2) paying overtime compensation to certain employees, and (3) keeping certain
    records about hours worked and wages paid. 
    Id. The contempt
    defendants did not
    appeal from the district court’s order. 
    Id. Three years
    after the district court entered its order, the government instituted
    contempt proceedings against the defendants, and the district court found that the
    defendants had violated the decree. 
    Id. at 189-90.
    Among other things, the
    defendants had set up a “false and fictitious” method of calculating compensation,
    provided employees wage increases in the guise of bonuses to reduce the amount of
    overtime pay they had to give, and misclassified some employees. 
    Id. Despite these
    findings, however, the district court did not hold the defendants in contempt, and the
    court of appeals upheld that decision. 
    Id. According to
    the court of appeals, there
    was no “willful contempt” because “neither the [FLSA] nor the injunction
    specifically referred to or condemned the [defendants’] practices.” 
    Id. at 191
    (emphasis added).
    The Supreme Court reversed, and its discussion applies forcefully in this case.
    First, the Court explained that “[t]he absence of wil[l]fulness does not relieve from
    civil contempt.” 
    Id. This is
    because “the purpose [of civil contempt] is remedial,
    [so] it matters not with what intent the defendant did the prohibited act.” 
    Id. The Supreme
    Court went on to explain that injunctions of some generality “are often
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    necessary to prevent further violations where a proclivity for unlawful conduct has
    been shown.” 
    Id. at 192.
    Significantly, the Court continued, if the contempt defendants had a problem
    with the injunction, they could have done a number of things, like appeal or ask the
    district court for “a modification, clarification[,] or construction of the order.” 
    Id. But the
    defendants did none of those things, opting instead to “make their own
    determination of what the decree meant.” 
    Id. Thus, the
    Court explained, the
    defendants “knew they acted at their peril.” 
    Id. To excuse
    the defendants years later, after they already took the questionable
    actions, the Court explained, would basically render the injunction useless and “give
    tremendous impetus to the program of experimentation with disobedience of the
    law”:
    The instant case is an excellent illustration of how it could
    operate to prevent accountability for persistent
    contumacy. Civil contempt is avoided today by showing
    that the specific plan adopted by respondents was not
    enjoined. Hence a new decree is entered enjoining that
    particular plan. Thereafter the defendants work out a plan
    that was not specifically enjoined. Immunity is once more
    obtained because the new plan was not specifically
    enjoined. And so a whole series of wrongs is perpetrated
    and a decree of enforcement goes for naught.
    
    Id. at 192-93.
    The Supreme Court refused to allow this never-ending cycle of
    violations, ruling that the defendants “knew full well the risk of crossing the
    forbidden line” and “took a calculated risk when under the threat of contempt they
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    adopted measures designed to avoid the legal consequences of the [FLSA].” 
    Id. at 193.
    They were not, the Supreme Court said, “unwitting victims of the law” and
    could not escape punishment now. 
    Id. The McComb
    Court might as well have been talking about this case. The
    defendants here were likewise not “unwitting victims of the law” but were instead
    calculating actors who stayed silent concerning the purported ambiguity about which
    they now complain. Then they deliberately engaged in self-serving activities they
    knew seriously risked violating the injunction.
    As we have recounted, during the original injunction proceedings, at the
    defendants’ request, the district court gave the defendants an opportunity to object
    to a draft version of the injunction that was ultimately entered. The defendants did
    not object that the phrase “competent and reliable scientific evidence” or its
    accompanying definition were unduly ambiguous. The district court then entered
    the injunction. The defendants also did not make a Rule 65 objection to the clarity
    of the injunction when they appealed to this Court (and even if they had, this Court
    affirmed the entry of the injunction).
    They had, after all, just litigated what that phrase meant in the context of
    dietary supplements that touted weight- and fat-loss benefits, and the district court
    had explained that only RCTs on the products themselves would suffice. So they
    likely understood that, in the future, to make claims about weight- and fat-loss
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    benefits for dietary supplements, they would need RCTs. And even if they didn’t,
    the defendants’ attorneys expressly advised them on multiple occasions that only
    RCTs would satisfy the standard.
    Wheat understood what his attorneys were telling him, as he conceded in an
    email to other Hi-Tech employees: “If the FTC verdict stands there is nothing we
    can say without doing a double-blind placebo study . . . .” But as Wheat expressed
    repeatedly, the RCT requirement put a heavy strain on his business. So knowing the
    risk, the defendants made a choice to continue to market products, relying largely on
    supporting evidentiary material the district court previously rejected and their own
    attorneys repeatedly advised Wheat was insufficient.
    As McComb explained, injunctions sometimes need to be phrased with some
    generality, to give flexibility to cover the endless derivations of a specific kind of
    prohibited conduct. 
    McComb, 336 U.S. at 192
    . And although Rule 65 specifies that
    the injunction should be self-contained, it is also impossible to spell out every
    imaginable detail. So those subject to an injunction can timely ask questions, seek
    modification or clarification, or object. That way, if some detail needs to be
    articulated more specifically, it will be. But a person facing an injunction cannot
    stay silent, take actions he has reason to believe are prohibited, and then complain
    about alleged “ambiguity” later.
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    Here, though, the defendants did precisely that. They stayed silent about the
    supposed ambiguity of which they now complain, were repeatedly informed by
    counsel that they risked contempt for using anything other than RCTs to substantiate
    their claims, knowingly proceeded anyway in the face of that risk—and reaped $40
    million in gross receipts—and now plead ignorance after being held in contempt.
    Injunctions are not so easily circumvented.
    The defendants offer some theories about why they have not waived their
    ambiguity argument. We dismiss each in turn.
    First, the defendants point out that the FTC bears the initial burden of making
    a prima facie showing that an injunction is valid and clear before the Hi-Tech
    defendants can be held in contempt. To the extent that the defendants make this
    argument to suggest that ambiguity objections can never be waived, we find that
    contention to be meritless. See 
    McComb, 336 U.S. at 191-94
    . As for the injunction’s
    definition of “competent and reliable scientific evidence”—“tests, analyses,
    research, studies, or other evidence based on the expertise of professionals in the
    relevant area, that ha[ve] been conducted and evaluated in an objective manner by
    persons qualified to do so, using procedures generally accepted in the profession to
    yield accurate and reliable results”—that appears on its face to be reasonable,
    particularly when we consider that the defendants did not object to the phrase,
    despite conceding it was the “operative command” in the substantiation requirement.
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    In short, we are satisfied that the FTC has carried its prima facie burden of showing
    the clarity of the injunction.
    Next, the defendants note that in rejecting their claim that the injunction was
    not sufficiently clear, the district court discussed the defendants’ assertions that the
    injunction was ambiguous and that it did no more than require them to obey the law. 3
    Because the district court addressed these arguments, the defendants contend, they
    had a right to address those grounds on appeal. We don’t disagree. But nothing
    about the district court’s discussion of those issues absolves the defendants’ waiver
    problem.
    District courts can offer multiple rationales, sometimes in the alternative, for
    their decisions, and we can affirm on any basis. Here, before discussing the
    defendants’ ambiguity arguments, the district court expressed doubt that those
    arguments were properly before it. Indeed, the court said that “the defendants were
    given an opportunity to object to the scope of the injunctions before they were
    entered, but they did not object to any of the provisions they ostensibly challenge
    3
    We have explained that an injunction that simply tells a defendant to obey the law can be
    too ambiguous to be enforced. But aside from concerns about clarity, there is nothing inherently
    wrong with an injunction that instructs a party to comply with a specific law. S.E.C. v. Goble, 
    682 F.3d 934
    , 950-51 (11th Cir. 2012) (explaining that obey-the-law injunctions often suffer from lack
    of specificity, but that “an injunction that orders a defendant to comply with a statute may be
    appropriate” when the enjoined activity remains clear). Thus, the defendants’ complaint that the
    injunction tells them only to obey the law is just another way of voicing their ambiguity argument.
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    now.” (emphasis added). So there can be no doubt that the district court in fact
    concluded that the defendants had waived their ambiguity arguments.
    Finally, the defendants contend that they did not have a fair opportunity to
    object to the “competent and reliable evidence” standard, since, according to them,
    they “could not reasonably have been expected to know in 2008 that the FTC would
    later seek to hold them in contempt for failing to substantiate different advertising
    claims with a product-specific RCTs standard not in the injunction.” We agree
    generally that, in some instances, a person subject to an injunction cannot fairly be
    expected to object to an ambiguity that becomes apparent only when, for example,
    a court evinces an unexpected interpretation of certain terms. But that’s not the case
    here, since the defendants’ attorneys literally told them that “it is reasonable to
    assume” that competent and reliable scientific evidence means RCTs on the
    marketed products. (emphasis added.) At the very least, then, the defendants were
    on notice that RCTs were likely to be required, and they were not permitted to
    assume the risk without accepting the consequences. See 
    McComb, 336 U.S. at 192
    (“They undertook to make their own determination of what the decree meant. They
    knew they acted at their peril.”).
    B. The defendants cannot show that the district court clearly erred when
    it found that they lacked competent and reliable scientific evidence to
    substantiate the claims at issue.
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    As explained, we remanded to the district court with instructions to determine
    whether any admissible evidence presented by the defendants constituted
    “competent and reliable scientific evidence.” Nat’l Urological Grp., 
    Inc., 785 F.3d at 483
    . On remand, the district court conducted a bench trial, after which it
    determined that the defendants did not have competent and reliable scientific
    evidence that substantiated the claims at issue.4 The defendants allege that the
    district court clearly erred in making this finding. We disagree.
    The district court’s finding that the defendants’ evidence did not amount to
    competent and reliable scientific evidence to substantiate the relevant claims is a
    factual determination, which we review for clear error. 
    Jove, 92 F.3d at 1545
    . On
    clear-error review, “[i]f the district court’s account of the evidence is plausible in
    light of the record viewed in its entirety, the court of appeals may not reverse it even
    though convinced that had it been sitting as the trier of fact, it would have weighed
    the evidence differently.” Anderson v. City of Bessemer City, N.C., 
    470 U.S. 564
    ,
    573-74 (1985). And when a district judge’s factual finding “is based on his decision
    to credit the testimony of one of two or more witnesses, each of whom has told a
    coherent and facially plausible story that is not contradicted by extrinsic evidence,
    4
    The district court clarified that even if what the defendants presented could be “competent
    and reliable scientific evidence” that would suffice in other contexts, it was not “competent and
    reliable scientific evidence” that could substantiate the claims at issue here.
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    that finding, if not internally inconsistent, can virtually never be clear error.” 
    Id. at 575.
    Here, the district court detailed its extensive reasoning as to why the
    defendants’ evidence was inadequate and why protections offered by tests like RCTs
    would be necessary for the claims at issue. The district court considered the
    qualifications of the FTC’s experts, Dr. Aronne and Dr. Richard van Breemen, who
    urged that protections offered by RCTs were necessary. It considered all the
    beneficial characteristics of RCTs that are run on humans and on the specific
    products: they factor in the unique biochemical properties of humans; there are
    placebo controls and double blinding; 5 there is randomization; 6 the studies would be
    large enough to produce reliable results; the studies would be long enough to
    produce reliable results; the products and dosages tested would be the ones about
    which the company makes claims; the studies would measure the endpoints the
    company makes claims about; and the results would be statistically significant, so
    there is less of a chance that the outcome is a fluke.
    The district court also explained why not having those beneficial properties
    would cause a study to be less reliable: results in animals or results in vitro would
    5
    A double-blind test is one where the test subjects do not know whether they are in the
    placebo group (first blind), and the researchers do not know which group is the placebo one, either
    (second blind).
    6
    Randomization is the process by which test subjects are randomly assigned to either the
    treatment or the placebo group.
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    have to be extrapolated to humans (but certain biochemical reactions that occur
    outside the human body may not repeat in the same way inside the body); there
    would be no way to know whether any placebo effect contributed to the results; it
    would have to be assumed that different ingredients in other products did not affect
    the outcome; it would have to be assumed that different dosages of the ingredients
    in other products did not affect the outcome; and there would be no way to determine
    whether selection bias had occurred. Notably, many of the defendants’ experts
    agreed with the district court’s points here. And the district court noted that the
    defendants’ evidence, which primarily consisted of studies on ingredients in the
    marketed products—as opposed to studies on the marketed products themselves—
    and RCTs of other products—as opposed to RCTs on the marketed products—
    lacked many of the safeguards of reliability mentioned above.
    The district court also considered the credentials of the defendants’ experts
    and found them lacking in many cases. Worse yet, the district court illuminated
    disturbing facts about the credibility of some of the defendants’ experts. For
    example, one of their experts, Dr. Wright, was repeatedly reprimanded by the
    Georgia Composite Medical Board and, in a 2003 civil case, may have lied to the
    district court in the Northern District of Georgia when he said that Wheat was in
    Belize to recuperate from an illness when Wheat was actually there to illegally
    further a conspiracy to manufacture, import, and distribute drugs in the United
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    States. Another of the defendants’ experts, Dr. Jacobs, admitted that he broke the
    blind7 and re-administered dosages when one of the RCTs he was conducting on
    another Hi-Tech product was not turning out the way he expected—that is, he
    deliberately influenced the experiment’s results.
    It should come as no surprise, then, that in the end, the district court concluded
    that the FTC had shown, by clear and convincing evidence, that the defendants’
    collection of ingredient-specific studies and RCTs of other products (some of which
    were run by Dr. Jacobs) did not constitute competent and reliable scientific evidence
    to substantiate their claims. Far from clear error, the district court’s findings were
    supported by the evidence.
    The defendants’ attempts to show that the district court committed clear error
    all fall flat. First, the defendants allege that the district court’s “cursory analysis
    never explains what standard the Hi-Tech defendants somehow failed to meet in the
    alternative” if RCTs were not required. In this respect, the defendants argue,
    “Having failed to identify precisely what substantiation standard it would apply in
    the alternative,” “the court surely could not objectively evaluate substantiation under
    that unarticulated standard.” But the district court did not necessarily need to
    articulate a standard to recognize that what the defendants presented did not amount
    to competent or reliable scientific evidence. Moreover, it should be clear from the
    7
    To break the blind is to uncover the placebo group in an experiment.
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    district court’s analysis that it used as the standard the level of reliability and
    competency afforded by RCTs on the advertised products. Put differently, what
    evidence the defendants presented had to be as reliable and as competent as results
    derived from RCTs on the marketed products.
    Second, the defendants argue that “the district court impermissibly shifted the
    burden to [them] to disprove contempt in the first instance by proving that their
    product claims were substantiated.” Not so. The FTC met its prima facie burden of
    clearly and convincingly showing that the injunction was violated, when it pointed
    out that the defendants were again making weight- and fat-loss claims about products
    without having RCTs on the products themselves, even though the court had held
    that only RCTs on the products themselves could be “competent and reliable
    scientific evidence” the last time. So the burden shifted to the defendants to explain
    why RCTs were not necessary and why they had evidence that carried the same
    reliability and competency as the RCTs that were required the first time. 
    Howard, 892 F.2d at 1516
    . Then at the bench trial, the FTC demonstrated by clear and
    convincing evidence that the evidence the defendants presented was not as reliable
    or as competent as RCTs on the marketed products would have been.
    Finally, the defendants argue that “when experts reasonably disagree over
    whether representations are supported by competent and reliable scientific evidence,
    as they did here, the FTC has not carried its burden to establish contempt by clear
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    and convincing evidence.” This argument does not save the day for the defendants
    for two reasons. First, we have already explained the problems the district court
    found with the defendants’ experts—problems the district court reasonably could
    rely on to discount those experts’ views. And second, even setting aside the
    defendants’ experts’ deficiencies, a battle of the experts does not necessarily
    paralyze the district court and exonerate the defendant. Rather, a district court can
    decide for one side or the other even when both present plausible stories. 
    Anderson, 470 U.S. at 573-74
    (“If the district court’s account of the evidence is plausible in
    light of the record viewed in its entirety, the court of appeals may not reverse it even
    though convinced that had it been sitting as the trier of fact, it would have weighed
    the evidence differently.”).
    The mere fact that a battle of experts exists goes more directly to the potential
    good faith of the defendant in attempting to comply with the injunction than to the
    defendant’s actual compliance. But as we have noted, good faith—even when it is
    demonstrated—is not enough, in and of itself, to escape civil contempt. 
    Leshin, 618 F.3d at 1232
    (explaining that in a civil contempt proceeding, “substantial, diligent,
    or good faith efforts are not enough; the only issue is compliance.”).
    C. Smith had the ability to comply with the injunction.
    Smith adopted the arguments we have already discussed, but he also made a
    separate argument: that he did not have the ability to comply with the injunction.
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    Smith claims he was merely “a salesman for Hi-Tech” who “never held a position
    with decision-making authority over Hi-Tech’s advertising, its product labels, or its
    testing of products.” According to Smith, “[t]he district court’s finding with respect
    to [him] is based on the actions of others . . . and must be reversed.” Specifically,
    “[r]ather than consider him individually, the district court effectively imputed the
    actions of Hi-Tech and Mr. Wheat to Mr. Smith.” We disagree.
    The district court did not have to rely on imputing others’ actions to Smith.
    In laying out the findings that supported holding him in contempt, the district court
    explained why Smith took actions that were integral to Hi-Tech’s violation of the
    injunction. Smith was the senior vice president in charge of sales at Hi-Tech, as well
    as the head of the “Food, Drug, and Mass” division there. In that capacity, he was
    responsible for landing retail accounts, including advertising and promoting Hi-Tech
    products at trade shows. The district court found that Smith “oversaw the sales force
    that marketed Hi-Tech products to retailers and had the authority to decide which
    retailers sold their products.”
    Smith protests that it was Wheat who designed the advertisements and that he
    had no power to order RCTs. “There was simply nothing [he] could have done to
    effect compliance,” he said, “because he did not have the power to change the
    advertising or the labels or to order double-blind, placebo-controlled clinical trials.”
    But Smith’s liability did not arise from his failure to order RCTs or design compliant
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    advertisements.   His liability stemmed instead from his decisions to continue
    marketing and selling Hi-Tech’s products without regard to his responsibility to
    ensure that those products did not carry unsubstantiated claims. Smith could have
    complied with the injunction simply by not participating in the infringing activities.
    That he chose to continue facilitating those prohibited activities sufficiently
    supported the district court’s conclusion finding him liable.
    IV. CONCLUSION
    For the foregoing reasons, we affirm the district court.
    AFFIRMED.
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