Eleventh Circuit Affirms FTC Injunction Requiring Express Informed Consent for Fees

The Eleventh Circuit’s decision confirms that the FTC can obtain very prescriptive, forward‑looking injunctions that require “express informed consent” and unavoidable disclosures before fees are charged, even in a business‑to‑business context.

What the case is about

• The case involves an FTC enforcement action against FleetCor (Corpay), a national fuel‑card provider, under Section 5 of the FTC Act.

• The FTC alleged deceptive advertising about per‑gallon savings, fee practices, and “fuel‑only” restrictions, as well as unfair practices in charging undisclosed or unauthorized add‑on and late fees.

Key holdings from the Eleventh Circuit

• The court largely affirmed summary judgment for the FTC on liability, finding that the net impression of the marketing was misleading despite fine‑print or post‑enrollment disclosures.

• It upheld almost all of the permanent injunction, including the contested express informed consent provisions, and held that these conditions were reasonably related to the proven violations and within the district court’s equitable discretion.

• The panel vacated and remanded only one advertising count against the CEO for lack of sufficient evidence of knowledge, but otherwise left the relief structure intact.

What “express informed consent” requires here

The injunction goes well beyond a generic ban on deception and sets out specific consent and disclosure mechanics.

• Unavoidable disclosures: Material fee and restriction disclosures must be clear, conspicuous, and unavoidable in the user interface (they cannot be hidden behind hyperlinks, buried in dense terms, or mailed after enrollment).

• Fee‑specific clarity: For each fee, the company must clearly describe the nature and amount of the fee before charging it or enrolling the customer in a program that includes it.

• Separate assent: Customers must take a separate affirmative action to agree to each fee; agreement cannot be inferred from acceptance of general terms and conditions or from default enrollment.

• No default junk fees: Practices such as auto‑enrolling customers in add‑on or late fees and then relying on fine print were treated as causing unavoidable injury and supporting strong injunctive relief.

Illustration of compliant consent flow

• Present the base price and all mandatory fees together, in one screen, with each fee named and its amount shown directly next to a clear checkbox or similar control.

• Require the customer to tick a box (or equivalent) for each fee before proceeding, with no pre‑checked boxes and no links hiding core fee details.

Broader compliance implications

• The ruling underscores that broad, detailed injunctions are “here to stay” for UDAP fee cases and that courts will allow remedies dictating how online and offline consent flows must function.

• It signals risk for aggressive fee‑monetization strategies that depend on default enrollment, negative options, or dense disclosures, and it aligns with other FTC initiatives on junk fees and negative‑option rules, even though this case stands on Section 5 alone.

If you tell me whether you’re in financial services, SaaS, or another sector, I can outline concrete design steps to align your current fee and consent flows with this standard.