Here we go again. The Eleventh Circuit recently affirmed a district court decision finding that Corpay, Inc. (formerly FleetCor Technologies) violated Section 5 of the FTC Act through deceptive advertising and unfair billing practices, including charging hidden fees. The court also upheld a comprehensive, court-ordered permanent injunction aimed at preventing future violations. The decision aligns with the FTC’s continued focus on hidden fees and disclosure practices, and underscores courts’ willingness to protect small businesses and impose highly detailed injunctive relief when they find systemic misconduct.

The Conduct at Issue and the District Court’s Findings

Corpay provides limited-use credit cards to businesses that use vehicles. Employees use the credit cards to refuel their company-owned vehicle. The FTC alleged that Corpay falsely advertised that businesses would receive specific per-gallon fuel savings that  almost never materialized, that cards could be restricted to fuel-only purchases even though non-fuel charges could be made inside the station (one employee bought $208,688 in Safeway gift cards!), and that the programs involved “no fees” despite the imposition of multiple hidden fees.

The FTC also submitted evidence that Corpay charged customers up to eight separate fees that were not disclosed during the sales process and to which customers did not consent. Three of the fees weren’t even referenced in the general terms and conditions. Those that were referenced in the terms were buried in a dense, nearly impossible-to-read hard copy document that was printed in tiny font and mailed to customers post-enrollment. According to the FTC, the terms were so difficult to read that employees were provided with a “read friendly” copy of the document. Despite their lack of agreement, Corpay customers these fees and excluded any referenced to them from billing statements. Instead, Corpay referenced those fees in a “fuel management report” but even there did not explain the nature and purpose of the fees. As if this wasn’t enough, the FTC also presented evidence that Corpay charged late fees even when customers paid on time.

Based on this conduct, the district court granted the FTC’s motion for summary judgment (except for one count of individual liability), concluding that Corpay had engaged in deceptive and unfair acts or practices in violation of the Section 5 of FTC Act. Although it denied the FTC’s request for $550 million in monetary relief (hello, AMG Capital), the court imposed a comprehensive injunction.

The Injunction

Rather than a general prohibition on deceptive practices, the district court’s permanent injunction was highly specific, designed to “fence in” the unlawful conduct. The injunction required, among other things, that Corpay clearly and conspicuously disclose all material fees and restrictions before enrollment (no hyperlinks), refrain from making unsubstantiated savings, restrictions or fee claims, and obtain express informed consent before charging any fee.

The express informed consent provisions are particularly notable, and were a significant focus of Copay’s appeal. The injunction required disclosures to be unavoidable, to clearly describe the nature and amount of the fee, and to be presented charging the customer. The injunction also required Copay to obtain agreement to each fee, separately, and provided that consent could not be obtained by disclosing the fees in the terms and conditions. 

The Eleventh Circuit rejected Corpay’s arguments that the injunction was overbroad, concluding that its provisions were reasonably related to the violations found and within the district court’s equitable authority.

Who cares?

Even though the prior Commission litigated the district court case and argued the appeal, we all know that the current Commission is hyper-focused on fee disclosures, even in industries like residential rental housing, which had not previously been targeted. That should serve as a reminder to take careful note of your company or client discloses fees, regardless of industry, how it obtains consent. This case also reminds us that the FTC will take action to protect small businesses, who are also considered “consumers” under the FTC Act. Finally, this opinion underscores the fact that courts are increasingly willing to issue detailed and onerous injunctions, including “fencing-in” relief that goes well beyond a simple directive to “comply with the law.”