UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FEDERAL TRADE COMMISSION, No. 21-56037

Plaintiff-Appellee, D.C. No. 2:09-cv-04719- v. MWF-CW GARY HEWITT, OPINION Defendant-Appellant, and JOHN BECK AMAZING PROFITS, LLC, a California limited liability company; JOHN ALEXANDER, LLC, a California limited liability company; JEFF PAUL, LLC, a California limited liability company; MENTORING OF AMERICA, LLC, a California limited liability company; FAMILY PRODUCTS, LLC, a California limited liability company; DOUGLAS GRAVINK; JOHN BECK; JOHN ALEXANDER; JEFF PAUL,

Defendants. 2 FTC V. HEWITT

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted February 16, 2023 Pasadena, California

Filed May 11, 2023

Before: Diarmuid F. O’Scannlain, Andrew D. Hurwitz, and Bridget S. Bade, Circuit Judges.

Opinion by Judge O’Scannlain

SUMMARY *

Fed. R. Civ. P. 60(b)

The panel affirmed the district court’s denial of Gary Hewitt’s Fed. R. Civ. P. 60(b) motion for relief from an equitable money judgment, in a case in which the district court in 2012 granted summary judgment to the Federal Trade Commission, holding that a scam by Hewitt violated Section 5 of the Federal Trade Commission Act (“FTCA”) and the Telemarketing Sales Rule. To remedy the violations, the district court in 2012 issued a permanent injunction that, inter alia, prohibited Hewitt from engaging in the unlawful practices; and entered * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. FTC V. HEWITT 3

a judgment in favor of the Federal Trade Commission for equitable monetary relief. Hewitt never appealed the judgment. In 2021, the Supreme Court issued AMG Capital Management, LLC v. Federal Trade Commission, 141 Sup. Ct. 1341 (2021), which held that Section 13(b) of the FTCA did not authorize such equitable monetary relief. Hewitt filed his Rule 60(b) motion to vacate the equitable monetary judgment awarded against him—relying on the decision in AMG. First, the panel addressed Hewitt’s argument that the district court erred in holding that the equitable monetary portion of the original judgment was not “void” under Rule 60(b)(4). Under the first category for Rule 60(b)(4) relief outlined in United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010), the panel held that Hewitt failed to establish a certain type of jurisdictional error. Hewitt failed to show that the equitable monetary judgment here—which was consistent with then-prevailing precedent—rested on a total want of jurisdiction, or lacked even a colorable basis. Turning to the second Espinosa category, the panel held that Hewitt also failed to establish that a “violation of due process deprive[d] [him] of notice or opportunity to be heard” before the original judgment was imposed. Espinosa, 559 U.S. at 271. Hewitt did not meaningfully press any material contentions that he was deprived of notice or an opportunity to be heard during the proceedings culminating in the underlying judgment. Second, Hewitt argued that the district court abused its discretion in concluding that the equitable monetary portion of the judgment lacked prospective application under Rule 60(b)(5). The standard used in determining whether a judgment has prospective application is whether it is executory, or involves the supervision of changing conduct 4 FTC V. HEWITT