## Facts

- The Federal Trade Commission (FTC) previously litigated against Kevin Trudeau for deceptive marketing and, in 2004, the parties entered a consent order.
- The consent order barred Trudeau from appearing in infomercials for any products except books, and only if he did not misrepresent a book’s content.
- Trudeau promoted his book, *The Weight Loss Cure “They” Don’t Want You To Know About*, through a televised infomercial.
- The book described a demanding regimen, including severe caloric restriction, organic-food requirements, daily walking, supplements, and injections of a prescription hormone not approved for weight loss.
- The infomercial portrayed the program as easy and simple, claimed viewers could “eat anything you want,” and suggested it did not involve diet, exercise, calorie counting, or taking pills.
- The FTC moved for an order finding Trudeau in civil contempt for violating the consent order’s ban on misrepresenting book content.
- The district court found Trudeau in civil contempt, ordered him to pay $37.6 million characterized as consumer redress, and prohibited him from appearing in any infomercials (including for books) for three years.
- Trudeau appealed, challenging both the contempt determination and the sanctions as improper for civil contempt.

## Issues

1. Whether Trudeau’s infomercial misrepresented the content of his book in violation of the consent order, supporting a civil contempt finding.
2. Whether the $37.6 million monetary award and the three-year infomercial ban were permissible civil contempt sanctions (coercive or compensatory) rather than impermissibly punitive.

## Decision

- The court affirmed the finding of civil contempt because the infomercial’s claims about the program’s ease and lack of dieting or exercise conflicted with the regimen described in the book.
- The court rejected Trudeau’s contention that he merely quoted the book or stated opinion; in context, the representations were misleading and violated the consent order.
- The court vacated the $37.6 million award and remanded because the sanction, as imposed, was not adequately justified as compensatory and raised concerns about method and evidentiary support.
- The court vacated the three-year infomercial ban and remanded because a fixed, unconditional prohibition resembled a punitive sanction rather than a coercive civil measure with an opportunity to purge.

## Legal Principles

- A party may be held in civil contempt for violating a consent order when the prohibited conduct is shown, including misrepresentations barred by the order’s terms.
- Civil contempt sanctions are limited to coercive measures designed to compel compliance (typically including a purge mechanism) or compensatory measures tied to losses caused by the contempt.
- Sanctions that function primarily as punishment are criminal in character and require criminal contempt procedures and protections.
- Monetary contempt sanctions labeled as compensation must be supported by evidence and a reasoned method connecting the amount to actual loss or injury attributable to the contempt.
- Fixed-term, unconditional injunctive restrictions imposed as contempt sanctions are suspect when they operate like a punitive sentence rather than a compliance-focused remedy.

## Conclusion

The Seventh Circuit upheld the civil contempt finding based on clear misrepresentation of a book’s content in violation of a consent order, but it vacated and remanded the monetary and injunctive sanctions because the district court had not sufficiently ensured that the penalties operated as proper civil contempt remedies rather than punishment.


F.T.C. v. Trudeau, 579 F.3d 754 (7th Cir. 2009)