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FEDERAL TRADE COMMISSION v. KUYKENDALL

No. 05-6047, No. 05-6138.

466 F.3d 1149 (2006)

FEDERAL TRADE COMMISSION, Plaintiff-Appellee/Cross-Appellant v. H.G. KUYKENDALL, SR.; C.H. KUYKENDALL, Defendants-Appellants/Cross-Appellees and H.G. KUYKENDALL, JR.; DIVERSIFIED MARKETING SERVICE CORPORATION; NATIONAL MARKETING SERVICE INC.; NPC CORPORATION OF THE MIDWEST INC.; MAGAZINE CLUB BILLING SERVICE, INC., Defendants.

United States Court of Appeals, Tenth Circuit.

September 28, 2006.

Attorney(s) appearing for the Case

Andrew W. Lester, Lester, Loving & Davies, P.C., Edmond, Oklahoma (Gregory J. Kerwin, Gibson, Dunn & Crutcher LLP, Denver, Colorado, and Susan B. Loving, Lester, Loving & Davies, P.C., Edmond, Oklahoma, with him on the briefs), for Defendants-Appellants/Cross-Appellees.

Michele Arington, Attorney (William Blumenthal, General Counsel, John F. Daly, Deputy General Counsel, and Gary L. Ivens, Of Counsel, with her on the briefs), Federal Trade Commission, Washington, DC, for Plaintiff-Appellee/CrossA-ppellant.

Before TACHA, Chief Circuit Judge, EBEL, Circuit Judge, and CASSELL, District Judge.

TACHA, Chief Circuit Judge.

H.G. Kuykendall, Sr. and C.H. Kuykendall (together, the "Senior Kuykendalls") appeal the District Court's denial of attorney fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(b). The Federal Trade Commission ("FTC") cross-appeals the District Court's award of certain costs under 28 U.S.C. § 2412(a)(1). We take jurisdiction under 28 U.S.C. § 1291, AFFIRM the denial of attorney fees, and REVERSE the...

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