FTC Act Unfairness in the Eleventh Circuit: § 45(n)’s Three-Factor Test Controls and Courts May “Fence In” Hidden-Fee Practices with Unavoidable, Non-Hyperlinked Disclosures and Fee-by-Fee Assent

Introduction

In Federal Trade Commission v. FleetCor Technologies, Inc. (rebranded as Corpay, Inc.), the Eleventh Circuit reviewed a sweeping FTC enforcement action under Section 5 of the FTC Act against Corpay and its CEO, Ronald Clarke. The FTC alleged that Corpay’s fuel-card marketing promised savings, control, and transparency while allegedly delivering hidden charges, misleading rebate and card-control claims, and unfair billing and late-fee practices.

The case raised three clusters of issues: (1) whether Corpay’s advertising was deceptive (Counts I–III); (2) whether Corpay’s fee and late-fee billing practices were unfair and/or deceptively billed (Counts IV–V); and (3) how far a court may go in crafting prospective injunctive relief—especially provisions requiring “unavoidable” disclosures, restricting hyperlink-based disclosures, and requiring separate assent for each fee (the “Express Informed Consent” provisions).

Summary of the Opinion

The Eleventh Circuit largely affirmed. It:

Affirmed summary judgment against Corpay on all five counts.
Affirmed the permanent injunction against Corpay, including the contested “Express Informed Consent” provisions.
Affirmed summary judgment against Clarke on Counts I, III, IV, and V.
Vacated summary judgment against Clarke on Count II (the “Fuel Only” advertising claim), holding the FTC failed to show—at summary judgment—that Clarke had “some knowledge” of that specific unlawful practice.
Remanded for further proceedings on Count II as to Clarke and for the district court to account for that change with respect to Clarke.

Analysis

Precedents Cited

The court’s reasoning is anchored in a set of familiar FTC Act and equitable-remedy precedents, but it also contains a notable corrective on the meaning of “unfairness” under 15 U.S.C. § 45(n) and the status of prior Eleventh Circuit language in LabMD.

1) Deception framework and “net impression”

FTC v. On Point Cap. Partners, LLC, 17 F.4th 1066 (11th Cir. 2021): The controlling test for deception—representation, likely to mislead reasonable consumers, and materiality—structures the analysis of Counts I–III. The opinion also draws from On Point to illustrate that small or obscure disclosures may not cure a misleading “net impression,” and to frame the “some knowledge” standard for individual liability.
Orkin Exterminating Co. v. FTC, 849 F.2d 1354 (11th Cir. 1988): Cited for the principle that deceptive practices do not require proof of intent—important because Corpay attempted to create factual disputes around consumer sophistication and disclaimers.
FTC v. Cyberspace.Com LLC, 453 F.3d 1196 (9th Cir. 2006), and FTC v. Direct Mktg. Concepts, Inc., 624 F.3d 1 (1st Cir. 2010): Used to reinforce that disclaimers do not defeat liability where the overall solicitation remains misleading and the disclaimers are not sufficiently prominent and unambiguous to correct the message.
FTC v. Brown & Williamson Tobacco Co., 778 F.2d 35 (D.C. Cir. 1985): Invoked (via analogy) to illustrate that virtually illegible disclosures do not alter an ad’s misleading impression.

2) Summary judgment standards

Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986): The court frames how the moving party must show the absence of a genuine dispute and how “materiality” and “reasonable jury” standards operate.
Scott v. Harris, 550 U.S. 372 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Ra- dio Corp., 475 U.S. 574 (1986)): Key to the court’s rejection of Corpay’s attempts to manufacture disputes through testimony “blatantly contradicted” by internal documents (notably on “Fuel Only” functionality and characterization of “transaction fees”).

3) Unfairness under § 45(n) and the “LabMD” clarification

LabMD, Inc. v. FTC, 894 F.3d 1221 (11th Cir. 2018): Corpay argued the FTC must anchor unfairness in “clear and well-established” public policies. The Eleventh Circuit rejected this as controlling, holding that the cited language was dictum and (critically) inconsistent with the statutory text of § 45(n).
FTC v. IAB Mktg. Assocs. LP, 746 F.3d 1228 (11th Cir. 2014): Used both to support the “caveat emptor is not the law” approach and, separately, as an example of what suffices for an executive’s “some knowledge” of unlawful practices.

4) Section 13(b), remedies, and “fencing-in” injunctions

AMG Capital Management, LLC v. FTC, 593 U.S. 67 (2021): Sets the boundary that § 13(b) does not authorize equitable monetary relief; relief must be prospective. This frames the remedial posture: only injunctive relief remains.
FTC v. Gem Merch. Corp., 87 F.3d 466 (11th Cir. 1996): Cited for the district court’s “inherent equitable power” to craft prospective relief.
FTC v. Colgate-Palmolive Co., 380 U.S. 374 (1965): The classic “fencing in” principle: violators can expect remedies that go beyond merely prohibiting the precise past conduct, so long as the relief is reasonably related to preventing recurrence.
SEC v. Carriba Air, Inc., 681 F.2d 1318 (11th Cir. 1982) (quoting SEC v. Blatt, 583 F.2d 1325 (5th Cir. 1978)): Supplies the multi-factor test (the “Carriba Air factors”) for likelihood of future violations supporting permanent injunctive relief.
FTC v. Nat'l Urological Grp., Inc., 80 F.4th 1236 (11th Cir. 2023): Provides the abuse-of-discretion framing for reviewing injunction decisions.
Fin. Info. Techs., LLC v. iControl Sys., USA, LLC, 21 F.4th 1267 (11th Cir. 2021), and Cumulus Media, Inc. v. Clear Channel Commc'ns, 304 F.3d 1167 (11th Cir. 2002): Reinforce the requirement that injunctions be narrowly tailored, while allowing prophylactic restrictions reasonably necessary to prevent recurrence.
Planetary Motion v. Techsplosion, Inc., 261 F.3d 1188 (11th Cir. 2001): Supports that equity can prohibit otherwise lawful conduct if needed to prevent future violations.
NAACP v. City of Evergreen, 693 F.2d 1367 (11th Cir. 1982) (quoting James v. Stockham Valves & Fit- tings Co., 559 F.2d 310 (5th Cir. 1977)): Voluntary cessation or post-complaint reform does not necessarily eliminate the need for an injunction.

5) Section 13(b) timing and “staleness” (not resolved, but addressed)

FTC v. Shire ViroPharma, Inc., 917 F.3d 147 (3d Cir. 2019): Corpay invoked the Third Circuit’s view that § 13(b) requires “existing or impending” violations at filing.
FTC v. Evans Products Co., 775 F.2d 1084 (9th Cir. 1985), and FTC v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009): Cited to show other circuits permit § 13(b) actions where conduct is “likely to recur.”
The Eleventh Circuit explicitly declined to enter the circuit split because, even assuming Corpay’s preferred standard applied, the evidence showed improper late-fee practices persisted into the relevant timeframe.

Legal Reasoning

A) Deceptive advertising (Counts I–III)

The court treated the “net impression” of Corpay’s marketing as decisive. Corpay’s efforts to rely on small-print disclaimers, “up to” language in some ads, and customer “sophistication” largely failed because the record showed the disclaimers often negated the headline promise, were difficult to read, or introduced undefined concepts (“Level 3,” “good standing”) and because most customers were small businesses rather than Fortune 500 companies.

Count I (per-gallon discounts): Prominent “save X¢ per gallon” claims were undermined by fine-print exclusions and program practices that reduced or eliminated rebates (including “turning off” discounts after months or for insufficient volume). The court held the evidence was “one-sided” enough to resolve deception on summary judgment.
Count II (“Fuel Only”): Internal training materials calling “Fuel Only” a “misnomer,” plus data showing non-fuel purchases, “blatantly contradicted” executive testimony that “Fuel Only” meant at-the-pump fuel-only restrictions by default. Liability against Corpay was therefore affirmed.
Count III (“No transaction fees”): The court rejected Corpay’s semantic redefinition of “transaction fee.” Internally and operationally, Corpay assessed per-transaction or per-gallon charges (Convenience Network Surcharge, Minimum Program Administration Fee, “Level 2/High Risk Pricing”) and even instructed staff to use “Transaction Fee” terminology. That was sufficient for deception as a matter of law.

B) Unfair billing practices and deceptive billing (Counts IV–V)

1) A key holding on § 45(n): no extra “public policy” prerequisite

The most jurisprudentially significant portion of the opinion is its treatment of unfairness under 15 U.S.C. § 45(n). Corpay relied on LabMD, Inc. v. FTC to argue the FTC must ground unfairness in “clear and well-established” policies expressed in the Constitution, statutes, or common law.

The court rejected that view for four independent reasons:

Invited error: Corpay had argued the simpler three-factor statutory standard in the district court, so it could not complain on appeal that the court failed to apply an additional requirement.
Dictum: The relevant LabMD language was not necessary to the decision and therefore not binding.
Textual correction: Section 45(n)’s text makes the three factors mandatory (“unless”) and “public policies” optional (“may”) and explicitly prevents public policy from being a “primary basis.” Therefore, the statute does not impose a threshold public-policy prerequisite to an unfairness finding.
Even if required: The court explained that Corpay’s conduct would still violate well-established policies (including contract and unconscionability principles) given the alleged concealment and lack of meaningful notice/assent.

This is a meaningful clarification: within the Eleventh Circuit, defendants cannot treat LabMD as imposing a rigid extra-statutory “well-established public policy” gatekeeper for unfairness beyond § 45(n)’s three-factor test.

2) Application of § 45(n) to Corpay’s fee practices

On the merits, the court found overwhelming evidence that Corpay’s fee practices caused substantial consumer injury not reasonably avoidable and not outweighed by benefits. The court emphasized practices designed to keep fees out of customers’ path: hard-to-access or unreadable Terms & Conditions (historically mail-only and tiny print), opt-out default enrollment in add-ons, invoices lacking itemized fees, “Fuel Management Reports” used to locate fees, ambiguous labels like “Misc.,” and internal panic when a fee accidentally appeared on an invoice.

The court also rejected arguments that post-FTC “improvements” (such as the “Express Informed Consent Project”) defeated summary judgment, noting that a substantial percentage of customers had not accepted new terms within the relevant period and that evidence suggested very few customers clicked to read hyperlinked terms.

3) Late-fee practices under § 13(b)

Corpay argued the FTC’s late-fee evidence was “stale” because it had updated online payment systems in 2018 and the complaint was filed in 2019. The court avoided taking sides in the circuit split on whether § 13(b) requires “existing or impending” violations at filing. It held that even under Corpay’s preferred standard, the record supported ongoing problems: late fees tied to payment timing cutoffs and weekend due dates, continued issues with non-online payment channels, and evidence of improper late fees persisting after the system changes.

C) Individual liability: “some knowledge” must be count-specific

The court reiterated the Eleventh Circuit standard that the FTC must show (1) authority to control and (2) “some knowledge of the practices” (FTC v. On Point Cap. Partners, LLC). Corpay conceded authority to control, so the dispute was knowledge.

The court treated “some knowledge” as a low bar (consistent with other circuits): actual knowledge, reckless indifference, or awareness of a high probability coupled with avoidance. The record supported Clarke’s knowledge of discount practices, fee practices, and late-fee revenue strategies, including specific internal communications and comments attributable to him.

But the court drew an important boundary: it vacated summary judgment on Count II against Clarke because the FTC failed to identify evidence tying Clarke’s knowledge to the specific “Fuel Only” advertising misrepresentation. In practical terms, the opinion signals that FTC “control person” liability cannot be sustained purely by general CEO involvement when the record lacks evidence of awareness (or reckless indifference) to a particular practice.

Impact

Unfairness doctrine (Eleventh Circuit): The opinion strengthens a textual, § 45(n)-focused unfairness framework and undercuts attempts to use LabMD, Inc. v. FTC as an extra-statutory barrier requiring the FTC to prove an independent “well-established public policy” predicate. This may streamline FTC unfairness proofs in fee-related cases, especially where concealment and consumer non-avoidability are central.
Disclosure design and online contracting: The affirmed injunction endorses remedial power to require disclosures to be “unavoidable,” to restrict “material terms” behind hyperlinks, and to require fee-by-fee assent—illustrating that courts may mandate interface and assent mechanics when prior practices show systematic concealment. This will likely influence how companies in subscription, fintech, payments, and B2B services structure opt-ins, add-ons, and renewals, even when dealing with business customers.
“Fencing-in” relief as a compliance lever: By relying on FTC v. Colgate-Palmolive Co., the court emphasizes that injunctive relief can go beyond simply prohibiting past conduct and can impose prophylactic constraints reasonably related to preventing recurrence—particularly where a defendant’s practices were “ingrained” and “came straight from the top.”
CEO/personal liability litigation strategy: The vacatur on Count II highlights a recurring evidentiary challenge for regulators: proving executive knowledge with sufficient specificity for each challenged representation. For defendants, it suggests a viable line of defense is to separate practices and demand record proof of knowledge per practice, rather than relying on generalized “tone at the top” evidence.
Late fees and operational cutoffs: The court treated payment processing rules (cutoff times, weekend due dates, posting delays) as potentially central to unfairness where they generate erroneous late fees. Businesses using automated late-fee assessment should expect closer scrutiny of posting logic and consumer-facing payment instructions.

Complex Concepts Simplified

Deceptive vs. unfair (FTC Act):
- Deceptive practices (Counts I–III, IV) focus on misleading representations or omissions that are likely to mislead reasonable consumers and are material.
- Unfair practices (Count V) focus on harm: substantial injury that consumers can’t reasonably avoid and that isn’t outweighed by benefits (15 U.S.C. § 45(n)).
“Net impression”: Courts evaluate what an ad communicates overall—not just whether small-print caveats exist. Fine print can fail if it is hard to notice, confusing, or contradicts the headline claim.
Summary judgment and “blatant contradiction”: Even if a witness testifies to a fact, a court can disregard it at summary judgment if documents/data so strongly contradict it that no reasonable jury could believe the testimony (Scott v. Harris).
Dictum: Statements not necessary to decide a case are not binding precedent. The court treated the “well-established policy” language in LabMD, Inc. v. FTC as dictum.
“Fencing-in” injunction: An injunction may restrict more than the exact conduct previously proven unlawful if needed to prevent recurrence—especially where violations were pervasive (FTC v. Colgate-Palmolive Co.).
Express Informed Consent (as ordered here): Not merely continued use or a single blanket “I agree,” but an affirmative act after clear disclosures (what the fee is, how much, whether recurring, and when incurred), and—under this order—no bundling multiple fees into one assent.

Conclusion

The Eleventh Circuit’s decision is consequential in two ways. First, it reinforces robust application of FTC deception principles against headline marketing claims undermined by fine print, undefined caveats, and operational realities. Second—and more doctrinally—it clarifies that FTC “unfairness” analysis is governed by § 45(n)’s three-factor test without an added, mandatory “well-established public policy” prerequisite, while simultaneously affirming strong “fencing-in” injunctive measures that target disclosure and assent mechanics where a defendant’s business practices show long-running, systematic concealment.

At the same time, the court’s vacatur on Clarke’s Count II liability underscores that individual FTC Act liability still requires evidence of “some knowledge” tied to the specific practice at issue—an important evidentiary discipline in executive-liability cases.