COLLOT GUERARD JOSHUA DOAN AMANDA GRIER ROBERT G. …

COLLOT GUERARD JOSHUA DOAN AMANDA GRIER (Each appearing pursuant to DUCivR 83-1.1(d)(1)) 600 Pennsylvania Ave., NW, CC-8528 Washington, D.C. 20580 Telephone: (202) 326-3187 [email protected]; [email protected]; [email protected] Attorneys for Plaintiff FEDERAL TRADE COMMISSION ROBERT G. WING (4445) JONI OSTLER (9607) KEVIN MCLEAN (16101) Assistant Attorneys General Utah Attorney General’s Office 160 East 300 South, Fifth Floor Salt Lake City, Utah 84114 Telephone: 801-366-0310 [email protected]; [email protected]; [email protected] Attorneys for Plaintiff UTAH DIVISION OF CONSUMER PROTECTION
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
Case No. 2:19-cv-00713-DAK-DAO District Judge Dale A. Kimball Magistrate Judge Daphne A. Oberg
FEDERAL TRADE COMMISSION and UTAH DIVISION OF CONSUMER PROTECTION, Plaintiffs, v.
ZURIXX, LLC, et al., Defendants.
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS PENDING SUPREME COURT REVIEW
Case 2:19-cv-00713-DAK-DAO Document 182 Filed 09/01/20 PageID.11311 Page 1 of 15
Plaintiffs’ Opposition to Stay Motion i
TABLE OF CONTENTS
Table of Contents ............................................................................................................................. i Table of Authorities ........................................................................................................................ ii I. Introduction ............................................................................................................................ 1 II. Legal Standard ....................................................................................................................... 2 III. The Supreme Court Ruling in AMG Will Not Simplify This Case ....................................... 2
A. Discovery Will Still Be Necessary To Establish Liability And To Determine The Scope Of A Permanent Injunction Regardless Of How AMG Is Decided ..................... 2
B. Defendants Face Significant Financial Exposure Regardless Of The AMG Ruling. ..... 3
C. Clarification Of The Amount Of Remedies Is Not Sufficient To Justify A Stay .......... 4
IV. The Stage Of Litigation And Prejudice To Plaintiffs Militate Against A Stay ..................... 6 V. Defendants Have Failed To Make Out A Clear Case Of Hardship Or Inequity If The Stay Is
Denied .................................................................................................................................... 8 VI. Conclusion ........................................................................................................................... 10
Plaintiffs’ Opposition to Stay Motion ii
TABLE OF AUTHORITIES
Cases Broadbent v. Altamirano, No. 2:20-cv-544-RJS (D. Utah) ............................................................ 8 Burke v. Alta Colls., Inc., No. 11-cv-02990, 2012 WL 502271 (D. Colo. Feb. 15, 2012) ............. 5 FTC v. AbbVie, No. 18-2621 (3d Cir. July 24, 2020) ..................................................................... 6 FTC v. Cardiff, No. 18-cv-2104-DMG, 2020 WL 3867293 (C.D. Cal. July 7, 2020) ................ 4,5 FTC v. Elegant Soutions., Inc., SA CV 19-1333, 2020 WL 4390381 (C.D. Cal. July 6, 2020) .... 5 FTC v. Freecom Communications, Inc., 401 F.3d 1192 (10th Cir. 2005) .................................. 4, 9 FTC v. John Beck Amazing Profits, LLC, 888 F. Supp. 2d 1006 (C.D. Cal. 2012) ........................ 3 FTC v. John Beck Amazing Profits, LLC, 644 Fed.Appx. 709 (9th Cir. 2016) .............................. 3 FTC v. Kutzner, 16-cv-999-DOC (C.D. Ca. July 28, 2020) .......................................................... 6 FTC v. Lending Tree Club, No. 18-cv-02454-JSC, 2020 WL 4898136 (N.D. Cal. August 20,
2020) ........................................................................................................................................... 6 FTC v. LoanPointe, LLC, No. 2:10-CV-225DAK, 2011 WL 4348304 (D. Utah Sept. 16, 2011) . 3 FTC v. LoanPointe, LLC, 525 Fed.Appx. 696 (10th Cir. 2013) ................................................. 3, 4 FTC v. Noland, No. 20-cv-00047, 2020 WL 4530459 (D. Ariz. Aug. 6, 2020) ......................... 4, 5 FTC v. Ross, 897 F.Supp.2d 369 (D. Md. 2012) ............................................................................ 3 FTC v. Ross, 743 F.3d 886 (4th Cir. 2014) ..................................................................................... 3 FTC v. Simple Health Plans, LLC, No. 18-cv-62593-DPG (S.D. Fla. August 3, 2020) ................ 6 In re Sanctuary Belize Litigation, 2020 WL 5095531, --- F.Supp.3d --- (D. Md. August 28, 2020) Landis v. North Am. Water Works & Elec. Co., 299 U.S. 248 (1936)................................ 1, 2, 8, 9 Lifetime Prod. Inc. v. Russell Brands, LLC, No. 1:12cv26DN, 2013 WL 5408458 (D. Utah Sept.
25, 2013) ..................................................................................................................................... 2 Lifted Ltd., LLC v. Novelty Inc., No. 16-cv-03135, 2018 WL 10911498 (D. Colo. Feb. 6, 2018).
................................................................................................................................................... ..9 Liu v. SEC, 140 S. Ct. 1936 ...................................................................................................... 7, 12 Lockyer v. Mirant Corp., 398 F.3d 1098 (9th Cir. 2005) ............................................................... 9 Menchacha-Estrada v. Synchrony Bank, No. 2:17CV831DAK, 2017 WL 4990561 (D. Utah Oct.
30, 2017) ..................................................................................................................................... 2 Metric Constr. Co. v. Prof’l Raingutter Servs., Inc., No. 1:06-CV-00125, 2007 WL 4143084 (D.
Utah Nov. 19, 2007).................................................................................................................... 5 Miller v. Basic Research, LLC, No. 2:07-CV-871 TS, 2011 WL 818150 (D. Utah Mar. 2, 2011)
............................................................................................................................................ .2, 4, 9 Porter v. Warner Holding Co., 328 U.S. 395 (1946)...................................................................... 9 Schwab v. Sec’y, Dept. of Corrections, 507 F.3d 1297 (11th Cir. 2007) ........................................ 4 Telebrands Corp. v. FTC, 457 F.3d 354 (4th Cir. 2006) ................................................................ 3 The Matrix Group, LLC v. Innerlight Holdings, Inc., No. 2:11-cv-00987, 2012 WL 5397118 (D.
Utah Nov. 5, 2012)...................................................................................................................... 5 Transam Trucking, Inc. v. Fed. Motor Carrier Safety Admin., No. 14-2015-CM, 2014 WL
12902152 (D. Kan. Apr. 28, 2014) ............................................................................................. 5 Tull v. United States, 481 U.S. 412 (1987) ..................................................................................... 4
Statutes 15 U.S.C. § 78u(d)(5) ............................................................................................................... 8, 12
Plaintiffs’ Opposition to Stay Motion 1
I. INTRODUCTION
Defendants seek a stay of all proceedings based on speculation that the Supreme Court
will reverse decades of precedent holding that Section 13(b) of the Federal Trade Commission
(“FTC”) Act authorizes courts to award equitable monetary relief (“Second Stay Motion” ECF
169). The Court has already rejected defendants’ argument twice, first in denying their partial
motion to dismiss (ECF 112),1 and second in vacating Magistrate Judge Furse’s order staying all
but written discovery to third parties and denying defendants’ Motion to Certify (ECF 127).2
Defendants stress that the Supreme Court has now decided SEC v. Liu and granted certiorari in
two cases that challenge courts’ power to issue monetary relief under Section 13(b) of the FTC
Act. However, as this Court has already held, “even if a Section 13(b) case was before the
Supreme Court, Plaintiffs are entitled to pursue discovery on its other claims and remedies.”
ECF at 127 at 2. Defendants provide the Court with no legitimate reason to revisit its prior
rulings denying their stay requests.
1 Controlling Tenth Circuit law, the structure of the FTC Act, and longstanding principles of equity jurisprudence led the Court to conclude that “Section 13(b) of the FTC Act provides for equitable monetary relief.” ECF 112 at 12. 2 In reversing the Magistrate’ Judge’s Stay Order the Court held: 1) there was no basis for staying discovery on state law claims; 2) regardless of the ultimate ruling in SEC v. Liu, the FTC is entitled to discovery on Zurixx’s liability under the FTC Act and on remedies other than equitable monetary relief; 3) controlling Tenth Circuit law allows the FTC to obtain equitable monetary relief and “[a]bsent a contrary decision from the Supreme Court, the court was bound to apply Tenth Circuit precedent”; 4) regardless of the outcome in Liu, the Court would still be bound by Tenth Circuit precedent regarding the FTC Act because Liu involved a different federal statute; 5) Liu “is not dispositive of any issue in this case”; and 6) “Liu is not a proper basis, legally or factually, for staying this case.” ECF 127 at 2. In denying the Motion to Certify, the Court held that regardless of the remedy under Section 13(b), the parties must still litigate the issue of liability and the extent of the harm for purposes of other available remedies and that an interlocutory appeal “would complicate and delay the present litigation.” ECF 127 at 4.
II. LEGAL STANDARD Under the Supreme Court’s guidance in Landis v. North Am. Water Works & Elec. Co.,
299 U.S. 248 (1936), “[o]nly in rare circumstances will a litigant in one cause be compelled to
stand aside while a litigant in another settles the rule of law that will define the rights of both.”
Id. at 255. A movant “must make out a clear case of hardship or inequity in being required to go
forward, if there is even a fair possibility that the stay for which he prays will work damage to
someone else.” Id. (emphasis added). This is a “heavy burden,” Miller v. Basic Research, LLC,
No. 2:07-CV-871 TS, 2011 WL 818150, at *3 (D. Utah Mar. 2, 2011), that movants cannot meet
where the benefit of the stay is, as here, “marginal at best,” id. at *5.
Courts typically consider the following factors in evaluating a stay request: “‘(1) whether
granting a stay would likely simplify the issues before the court; (2) the stage of the litigation;
and (3) a balancing of prejudice to the parties.’” Menchacha-Estrada v. Synchrony Bank, No.
2:17CV831DAK, 2017 WL 4990561, at *1 (D. Utah Oct. 30, 2017) (quoting Lifetime Prod. Inc.
v. Russell Brands, LLC, No. 1:12cv26DN, 2013 WL 5408458, at *2 (D. Utah Sept. 25, 2013)).
III. THE SUPREME COURT RULING IN AMG WILL NOT SIMPLIFY THIS CASE
A. Discovery Will Still Be Necessary To Establish Liability And To Determine The Scope Of A Permanent Injunction Regardless Of How AMG Is Decided
This Court has already held that the FTC is “entitled to discovery on defendants’
underlying liability under the FTC Act and remedies other than equitable monetary relief.” ECF
127 at 2. 3 AMG will not affect existing law on liability, the scope of the conduct relief, or the
availability of monetary relief under Section 194 and the applicable Utah statutes. Moreover,
3 The First Amended Complaint (ECF 134) has 13 counts and defendants raise 30 defenses in their Answer (ECF 162). 4 Section 19(b) provides the Court jurisdiction “to grant such relief as the court finds necessary to
courts consider the gravity of the harm in fashioning an injunction.5 Thus, plaintiffs need
discovery of the total scope of consumer injury to propose the appropriate injunction.6 In short,
any effect AMG might ultimately have on defendants’ monetary relief under Section 13(b) (the
sole issue in AMG) will not simplify, certainly not meaningfully, this litigation, and will have no
effect on plaintiffs’ need for discovery to prove liability and to establish consumer redress under
Section 19 and Utah law.
B. Defendants Face Significant Financial Exposure Regardless Of The AMG Ruling
Under Section 19 of the FTC Act, defendants face substantial monetary exposure on
plaintiffs’ TSR claim. As noted, Section 19 is not at issue in AMG. Zurixx sold more than $136
million in coaching sessions and other real estate products via telemarketing.7 The Utah state
law claims likewise give rise to substantial monetary liability. The continuing viability of these
redress injury to consumers . . . resulting from the rule violation . . . Such relief may include, but shall not be limited to, rescission or reformation of contracts, the refund of money or return of property, the payment of damages, and public notification respecting the rule violation or the unfair or deceptive act for practice. . . .” 5 See Telebrands Corp. v. FTC, 457 F.3d 354, 358-59 (4th Cir. 2006) (courts consider “the seriousness and deliberateness of the violation” in assessing the appropriateness of “fencing in” provisions); FTC v. John Beck Amazing Profits, LLC, 888 F.Supp.2d 1006, 1015 (C.D. Cal. 2012), aff’d, 644 Fed. Appx. 709 (9th Cir. 2016) (unpublished) (scope of permanent injunction justified, in part because the “amount of consumer injury is massive”). 6 Plaintiffs will also need discovery into defendants’ profits because the extent to which the individual defendants profited from the enterprise will help demonstrate their participation in and authority to control the scheme, which in turn supports a finding of individual liability. See FTC v. Ross, 897 F.Supp.2d 369, 383-84 (D. Md. 2012), aff’d, 743 F.3d 886 (4th Cir. 2014) (that defendant received profits of the scheme supports finding that she had authority to control deceptive acts). According to the Monitor’s Report (ECF 1-2 at 9), the individual defendants received $250,000 in annual compensation as well as distributions in the total amount of $78.4 million. ECF-71-2 at 9. Zurixx’s finances will show common ownership, profit sharing, and commingling of corporate funds, which courts consider in determining whether a common enterprise exists. FTC v. LoanPointe, LLC, No. 2:10-CV-225DAK, 2011 WL 4348304, at *10 (D. Utah Sept. 16, 2011), aff’d, 525 Fed. Appx. 696 (10th Cir. 2013) (unpublished). 7 See Declaration from Receiver’s Accountant, attached as Exhibit A.
remedies, regardless of the outcome in AMG, requires discovery into the total amount of
consumer loss.
C. Clarification Of The Amount Of Remedies Is Not Sufficient To Justify A Stay
Defendants argue that the ruling in AMG would streamline this litigation because it will
“impact this case in some fashion.” (Second Stay Motion, at 5). Such undefined “impact”
cannot satisfy defendants’ “heavy burden.” Miller, 2011 WL 818150, at *5 (denying a stay
where its alleged benefit appeared “marginal at best.”).
Moreover, a grant of certiorari does not suggest a view on the merits of an issue because
“[w]e don’t know how the Supreme Court is going the decide the issues on which it has granted
review . . . and the Supreme Court itself probably does not know given the fact that briefing has
not even been completed . . . .” Schwab v. Sec’y, Dept. of Corrections, 507 F.3d 1297, 1298
(11th Cir. 2007) (denying stay request). The Supreme Court’s grant of certiorari provides no
new insight and does nothing to change the binding law in this Circuit as set forth in FTC v.
Freecom Communications, Inc., 401 F.3d 1192, 1202, n. 6 (10th Cir. 2005) and FTC v.
Loanpointe, LLC, 525 Fed.Appx. 696, 699 (10th Cir. 2013) (unpublished).
Liu is also immaterial here because, among other reasons, it concerns a different agency,
a different statute, and a different remedy.8 Moreover, Liu does not foreclose even the SEC, let
8 Liu addresses disgorgement of profits—a narrow equitable remedy distinct from the restitution remedy the FTC seeks here to return money to consumers. The Supreme Court also distinguished the disgorgement sought by the SEC (a “limited form of penalty” that deprives defendants of “improper profits”) in Liu, from “restitution that simply ‘restor[es] the status quo,’” and is therefore “squarely within the heartland of equity.” Liu, 140 S. Ct. at 1943 (quoting Tull v. United States, 481 U.S. 412, 424 (1987)). Because “[d]isgorgement and restitution are different remedies, governed by different standards,” it “remains unclear what, if any, effect Liu may have on the calculation of restitution awards.” FTC v. Noland, No. 20-cv- 00047, 2020 WL 4530459, at *5 (D. Ariz. Aug. 6, 2020). See also FTC v. Cardiff, No. 18-cv- 2104-DMG, 2020 WL 3867293, at *5-6 (C.D. Cal. July 7, 2020) (“Liu does not appear, however, to preclude the FTC from seeking restitution under the FTCA. Liu’s holding is cabined to
alone the FTC, from seeking an equitable remedy in excess of a defendant’s net profits, and does
not proscribe joint-and-several liability. Liu also recognizes that collective liability is
appropriate in equity where, as here, “partners engaged in concerted wrongdoing” and
defendants may not deduct costs because “the entire profit of [their] business” resulted from the
wrongdoing).9
Defendants cite no instance where a case was stayed under the circumstances presented
here—where a pending case was expected to impact at most the amount of monetary relief. In
many of the cases they cite, there was the possibility that the resolution of one case would moot
the case in which the stay was sought.10 Even defendants do not argue, nor can they, that the
disgorgement in SEC actions under a distinct provision of the SEC Act . . . Liu’s reasoning does not affect the FTC’s calculation of restitution owed to consumers based on total revenues.”). 9 District courts have denied similar motions in FTC cases around the country. See, e.g., Cardiff, 2020 WL 3867293, at *6 (“Given the broad sweep of this section of the FTCA compared to § 78u(d)(5) of the SEC Act, Liu’s reasoning does not affect the FTC’s calculation of restitution owed to consumers based on total revenues.”); FTC v. Elegant Solutions., Inc., SA CV 19-1333, 2020 WL 4390381, at *16 (C.D. Cal. July 6, 2020) (rejecting Liu’s application while noting that Liu supports “collective liability”). Another court explicitly rejected assertions that the grant of certiorari in AMG makes any difference. Noland, 2020 WL 4530459, at *5 (“Unless and until the Supreme Court or Ninth Circuit decides otherwise, this Court must follow existing Ninth Circuit precedent, which permits the FTC to seek restitution, to seek a freeze of assets held by non-parties, and to seek appointment of a receiver. Liu is not ‘clearly irreconcilable’ with that precedent.”). 10 See, e.g., Burke v. Alta Colls., Inc., No. 11-cv-02990, 2012 WL 502271, at *2 (D. Colo. Feb. 15, 2012) (“It is certainly more convenient for the Court to stay discovery until it is clear that the case is not mooted or otherwise redirected or resolved as the result of a Supreme Court decision on a fundamental legal issue.”); Metric Constr. Co. v. Prof’l Raingutter Servs., Inc., No. 1:06- CV-00125, 2007 WL 4143084 at *4 (D. Utah Nov. 19, 2007) (granting stay in district court case where Court of Federal Claims case could moot district court case); Transam Trucking, Inc. v. Fed. Motor Carrier Safety Admin., No. 14-2015-CM, 2014 WL 12902152, at *3 (D. Kan. Apr. 28, 2014) (granting motion to stay in part where Tenth Circuit ruling “may change or dispense with altogether the parties’ arguments in this case”); The Matrix Group, LLC v. Innerlight Holdings, Inc., No. 2:11-cv-00987, 2012 WL 5397118, at *4 (D. Utah Nov. 5, 2012) (granting motion to stay pending resolution of summary judgment motion that could bar the litigation by principles of waiver, estoppel, and due process).
ultimate ruling in AMG might have such an impact.11
Several courts have recently denied stay motions such as this. See e.g., FTC v. Simple
Health Plans, LLC, No. 18-cv-62593-DPG (S.D. Fla. Aug. 3, 2020) (Exhibit B) (grants of
certiorari do not make “a strong showing that [the defendants] are likely to succeed on the merits
or that they will be irreparably injured absent a stay . . . [T]he Supreme Court’s decision [in
AMG] will have no bearing on Defendants’ liability for violations of the FTC Act and the
Telemark[et]ing Sales Rule (“TSR”) or whether injunctive relief is warranted.”); FTC v.
Kutzner, 16-cv-999-DOC (C.D. Ca. July 28, 2020) (Exhibit C) (“The Court DENIES the EX
PARTE APPLICATION to Stay case pending Supreme Court Cases filed by defendant Jeremy
Foti.”); In re Sanctuary Belize Litigation, 2020 WL 5095531, ___ F.Supp.3d ____at n. 61 (D.
Md. Aug. 28, 2020) (same).12
IV. THE STAGE OF LITIGATION AND PREJUDICE TO PLAINTIFFS MILITATE AGAINST A STAY A halt to all proceedings at this stage prejudices plaintiffs, the injured consumers, and
third parties seeking to sue, or continue their litigation against, defendants. First, the discovery
11 Defendants’ citation to FTC v. AbbVie is misplaced and misleading. While the Third Circuit did sua sponte ask the parties to submit letter briefs on whether the court should hold the appeals pending Supreme Court resolution of AMG, all parties subsequently asserted that the case need not be held pending Supreme Court resolution of AMG. FTC v. AbbVie, No. 18-2621 (3d Cir. July 24, 2020), ECF 240, 241, 242. See Exhibit D. 12 To date, one magistrate judge has granted a stay pending the AMG ruling. FTC v. Lending Tree Club, No. 18-cv-02454-JSC, 2020 WL 4898136 (N.D. Cal. Aug. 20, 2020). However, that case presented very different facts. First, discovery in Lending Tree had already closed. Here, fact discovery closes July 22, 2021, and expert discovery on December 3, 2021. Second, the Lending Tree trial was scheduled to be held in October, 2020, which the magistrate judge found raised “complications imposed by the ongoing COVID-19 pandemic . . . ” with its attendant issues of whether the court could require a party to try a case virtually. Lending Tree, 2020 WL 4898136 at * 4. By contrast, the trial here is set for August 15, 2022, well after a ruling in AMG. Third, Lending Tree only involves liability under Section 13(b) whereas liability here rests also on Section 19 and Utah law.
Zurixx seeks to stay goes well beyond the discrete legal question of equitable monetary relief
under Section 13(b) at issue in AMG. Defendants are seeking a lengthy stay, which if granted
could last as long as ten months, through June 2021. Such a long delay increases the risk of
evidence being lost or destroyed and the potential for witnesses’ memories to fade or even
disappear.
Second, plaintiffs have already expended considerable resources on this case. Since entry
of the TRO, the FTC has downloaded 19.3 TB of defendants’ data from their servers, imaged six
laptops, and copied documents during the Immediate Access and in a subsequent trip to Utah.
The FTC has conducted several telephone interviews of a Zurixx former employee and other
nonparties and issued 31 document subpoenas since January 2020.13
Third, a stay would delay relief to thousands of consumer victims who paid millions of
dollars to defendants from at least 2012. Any amount recovered should be returned to consumers
as soon as possible, whether under Section 13(b), Section 19, or Utah law. The continued
passage of time will increase the possibility that consumer victims cannot be reached or
redressed because they have moved, changed their contact information, or passed away. Thus, a
stay of as much as ten months would inevitably make redress more challenging.
Fourth, the stipulated preliminary injunction imposes a stay on all actions against the
Receivership Entities (ECF 54 §XX(B)).14 Thus, a stay unfairly prejudices persons and entities
who want to commence or resume litigation against the defendants.
13 The FTC has issued document subpoenas to, for example, the 1) celebrity-endorsers defendants used to entice consumers to attend Zurixx’s sales events, 2) companies that provided the real estate databases that Zurixx customers tried to use, 3) presenters at Zurixx’s sales events, and 4) Zurixx’s coaches. 14 The Receiver’s Status Report filed August 26 describes the steps he has taken to stay lawsuits involving, and halt claims against, the Receivership Entities. ECF 176 at 6.
Fifth, the Receiver has filed ancillary lawsuits against eight Zurixx employees and agents
alleging violations of Utah’s Voidable Transfer Act, all now pending before this Court. A ruling
in AMG will have no effect on the Receiver’s lawsuits as they are based on Utah law. Moreover,
much of the discovery in the Receiver’s cases and the FTC case will overlap as a major premise
underlying both the FTC case and the Receiver’s cases is misrepresentations about the profit to
be made with the Zurixx real estate products.15 It makes no sense and would be a tremendous
waste of the parties’ and the Court’s resources to delay discovery in the FTC case while it
proceeds in the Receiver’s cases.
Finally, a delay in the FTC case decreases the funds available to consumers, whether
awarded as equitable monetary relief under Section 13(b) or as redress under Section 19(b). The
longer the Receivership continues, the greater the expenses that the Receiver will incur and thus
less money will likely be available to distribute to consumers.
V. DEFENDANTS HAVE FAILED TO MAKE OUT A CLEAR CASE OF HARDSHIP OR INEQUITY IF THE STAY IS DENIED
Defendants must “make out a clear case of hardship or inequity in being required to go
forward” because, as shown above, there is more than a “fair possibility” that a stay “will work
damage to” both the FTC, consumer victims, and other litigants (and thus the public interest).
See Landis, 299 U.S. at 255. Defendants have not identified any plausible hardship or inequity.
Their speculation about saving indeterminate expenses if the stay is granted do not outweigh the
significant prejudice to the plaintiffs, consumers, and the public.
15 The complaints against the eight individuals include the following allegation: “Upon information and belief, [defendant] was involved in much of the alleged deception and made many of the alleged misrepresentations to consumers asserted by the FTC and the UDCP” in this case. See, e.g., Broadbent v. Altamirano, No. 2:20-cv-544-RJS, ECF 2 at ¶18.
Defendants contend that uncertainty as to the application of Liu to the FTC Act would
require them to underwrite multiple expensive expert analyses, which could be avoided if the
Court grants the stay.16 Defendants thus argue that without a stay they will suffer the hardship of
paying litigation expenses. But “being required to defend a suit, without more, does not
constitute ‘a clear case of hardship or inequity’ within the meaning of Landis.” Lockyer v.
Mirant Corp., 398 F.3d 1098, 1112 (9th Cir. 2005) (quoting Landis, 299 U.S. at 255); see also
Lifted Ltd., LLC v. Novelty Inc., No. 16-cv-03135, 2018 WL 10911498, at *3 (D. Colo. Feb. 6,
2018) (stay is not justified by potential for unnecessary litigation expenses, because “every
defendant is forced to bear litigation expenses that could ultimately prove to be unnecessary”).
Moreover, defendants’ expert counter reports are not due until October 11, 2021, several months
after the end of the Supreme Court 2020 term. By June 2021, if not long before, defendants will
know of any change, if any, to monetary relief under Section 13(b).17
16 Defendants contend that they are prejudiced by the uncertainty that Liu has allegedly injected into calculations under Section 13(b). But Liu supports the FTC’s authority to seek equitable monetary relief insofar as it reaffirms Porter v. Warner Holding Co., 328 U.S. 395 (1946), which construed injunctive relief to include equitable monetary relief. Liu, 140 S.Ct. at 1943. However, because Liu interpreted 15 U.S.C. § 78u(d)(5), and not Section 13(b) of the FTC Act, its holding as to the method of calculating disgorgement does not disturb the binding Tenth Circuit precedent of Freecom, which confirmed that calculating monetary relief based on “gross receipts” is appropriate in a large consumer deception case brought under Section 13(b). 401 F.3d at 1206-07. Liu observed, moreover, that where there is pervasive wrongful conduct, it may be appropriate to deny a defendant inequitable deductions for expenses that furthered the scheme. 140 S. Ct. at 1945-46. The Zurixx enterprise may well fall in this category. 17 Under the Scheduling Order (ECF 151), expert discovery closes December 3, 2021, dispositive motions are due January 15, 2022, and trial is set for August 15, 2022. Given this schedule, there is simply no need for superfluous motion practice regarding experts to resolve the application of Liu to this case at this stage. Once this litigation reaches the phase where legal issues need to be resolved and evidence limited, the parties will know the outcome of AMG. See Miller, 2011 WL 818150, at *5 (stay is not needed where the impact of the subject case on the case to be stayed is “a question of law which need not be decided at this juncture”).
Defendants also contend that a stay would streamline “motions practice” and “trial,” but they fail to explain what concrete impact a resolution of AMG would have on either. Indeed,
Defendants also assert that a stay is appropriate because if the Supreme Court concludes
that Section 13(b) does not allow equitable monetary relief, defendants will be more inclined to
settle this case. (Second Stay Mot. n. 3). As discussed in Section III(B), even setting aside
defendants’ liability under Section 13(b), defendants still face large monetary exposure under the
TSR and Utah law that far exceeds their potential litigation expenses, and likely exceeds greatly
their total assets. Thus, AMG should have little, if any, effect on defendants’ desire to settle this
case.
VI. CONCLUSION
For the foregoing reasons, plaintiffs respectfully request that the Court deny defendants’
Motion.
Dated: September 1, 2020 Respectfully submitted,
/s/ Collot Guerard Collot Guerard Joshua Doan (Each appearing per DUCivR 83-1.1(d)(1)) Federal Trade Commission 600 Pennsylvania Ave. NW, CC # 8602 Tel: (202)326-3338 Email: [email protected] Email: [email protected] Attorneys for Plaintiff FEDERAL TRADE COMMISSION /s/ Robert G. Wing (Signed by Filing Attorney with Permission of Plaintiff’s Attorney)
given the litigation deadlines in this case, where there are almost 18 months before the close of expert discovery, and 19 months to file dispositive motions, there will be ample time after the AMG ruling to tailor expert discovery and focus dispositive motions. And for the reasons discussed above, a ruling in AMG is unlikely to shorten any trial.
/s/ Collot Guerard Robert G. Wing (4445) Joni Ostler (9607) Kevin McLean (16101) Assistant Attorneys General Utah Attorney General’s Office 160 East 300 South, Fifth Floor Salt Lake City, Utah 84114 Tel: (801) 366-0310 Email: [email protected] Email: [email protected] Email: [email protected] Attorneys for Plaintiff UTAH DIVISION OF CONSUMER PROTECTION
Certificate of Service
I HEREBY CERTIFY that on the 1st day of September, 2020, a true and correct copy of the foregoing, Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Stay Proceedings Pending Supreme Court Review, was served electronically by the Court’s ECF System upon:
Eric Benson Z. Ryan Pahnke RAY QUINNEY & NEBEKER, PC 36 South State Street, Suite 1400 PO Box 45385 Salt Lake City, UT 84145 Telephone: 801-323-3327 Email: [email protected] Email: [email protected] Mark L. Smith D. Loren Washburn SMITH WASHBURN, LLP 8 East Broadway, Suite 320 Salt Lake City, UT 84111 Telephone: 801-584-1800 Email: [email protected] Email: [email protected]
Attorneys for the Zurixx Defendants Brennan Moss Michael Gehret ARMSTRONG TEASDALE 257 East 200 South, Suite 350 Salt Lake City, UT 84111 Telephone: 720-613-7088 Email: [email protected] Email: [email protected] Attorneys for the Zurixx Trust Defendants
/s/ Collot Guerard Collot Guerard
Exhibit A
Case 2:19-cv-00713-DAK-DAO Document 182-1 Filed 09/01/20 PageID.11326 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
FEDERAL TRADE COMMISSION; and
UTAH DIVISION OF CONSUMER
company; BRAND MANAGEMENT
company; CAC INVESTMENT VENTURES,
CARLSON DEVELOPMENT GROUP
CARLSON DEVELOPMENT GROUP
company; CJ SEMINAR HOLDINGS, LLC, a
Utah limited liability company; DORADO
MARKETING AND MANAGEMENT, LLC,
liability company; JSS INVESTMENT
company; JSS TRUST, individually and as an
1 14871701 vl
owner of JSS INVESTMENT VENTURES, LLC; ZURIXX FINANCIAL UTAH, a Ut limited liability company; ZURIXX FINANCIAL PUERTO RICO, a Puerto Rico limited liability company; CRISTOPHER A. CANNON, individually and as an officer of ZURIXX, LLC; JAMES M. CARLSON, individually and as an officer of ZURIXX, LLC; JEFFREY D. SPANGLER, individually and as an officer of ZURIXX, LLC; and GERALD D. SP ANGLER, a trustee for the JSS TRUST,
Defendants.
I, Gil A. Miller, pursuant to 28 U.S.C. § 1746, declare as follows:
1. I the senior managing member of Rocky Mountain Advisory ("RMA"), which
David K. Broadbent, the Court-appointed Receiver (the "Receiver") in the above captioned case,
has retained to serve as accountants to the Receiver. I am a certified public accountant, licensed
in Utah, a certified fraud examiner and a certified insolvency and restructuring advisor.
2. Around the time of the Receiver's appointment in November 2019, RMA worked
with both the former controller and former chief financial officer for the Defendants to obtain the
Defendants' accounting data and other financial information. The accounting data was obtained
from the Defendants' accounting system. This data covered the years 2012 through 2019. We
have spent considerable time analyzing the Defendants' accounting data and transactions. My
staff and I worked closely with the chief financial officer to ensure the data was properly
analyzed and summarized.
3. The Defendants' accounting records show that between October 2012 and
October 2019, Zurixx's telemarketers sold more than $136 million in coaching sessions and
14871701_vl Ex. A, Page 2 of 3
other real estate-related products. The more than $136 million in real-estate related
telemarketing sales represents deposits, net of chargebacks, and refunds and represents the vast
majority of the Defendants' telemarketing sales.
I declare under penalty of perjury that the foregoing is true and correct.
Dated this 5 / ,;J: day of August, 2020.
Gil A. Miller
Exhibit D
Seth P. Waxman
+1 202 663 6800 (t) +1 202 663 6363 (f)
[email protected]
July 24, 2020
Patricia S. Dodszuweit, Clerk Office of the Clerk U.S. Court of Appeals for the Third Circuit 21400 U.S. Courthouse 601 Market Street Philadelphia, PA 19106-1790
Re: FTC v. AbbVie Inc. et al., Nos. 18-2621, -2748, -2758
Dear Ms. Dodszuweit:
I write in response to the Court’s July 10, 2020 order requesting the parties’ views as to whether these cross-appeals should be held pending the Supreme Court’s decision in AMG Capital Management, LLC v. FTC, No. 19-508, and FTC v. Credit Bureau Center, No. 19-825, which will consider whether §13(b) of the Federal Trade Commission Act permits an award of monetary relief.
For the reasons noted in my July 10, 2020 letter pursuant to Rule 28(j), a hold is not necessary. This case can be resolved on grounds independent of the question presented in AMG Capital and Credit Bureau because the FTC failed to prove the patent-infringement suits against Teva and Perrigo were objectively baseless—i.e., that the suits were so clearly foreclosed that no reasonable litigant could have perceived any chance of winning. Professional Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61 (1993) (“PRE”); see also id. at 65 (suit is not objectively baseless where it was “arguably ‘warranted by existing law’ or at the very least was based on an objectively ‘good faith argument for the extension, modification, or reversal of existing law’” (citing Rule 11)); Eli Lilly & Co. v. Hospira, Inc., 933 F.3d 1320 (Fed. Cir. 2019), cert. denied, 2020 WL 3146704 (U.S. June 15, 2020). The FTC also failed to prove the suits were subjectively baseless, instead arguing that objective baselessness alone should suffice in Hatch-Waxman cases handled by lawyers. But see PRE, 508 U.S. at 60- 61, 65; City of Columbia v. Omni Outdoor Advert., Inc., 499 U.S. 365, 380-381 (1991). And the FTC failed to prove that AbbVie had monopoly power. AbbVie Br. 61-71. Moreover, even if remedial issues were implicated, reversal of the disgorgement award would be required for multiple reasons independent of the §13(b) issue pending in the Supreme Court. AbbVie Br. 80-85.
Case: 18-2621 Document: 240 Page: 1 Date Filed: 07/24/2020
Ex. D, Page 1 of 11
Patricia S. Dodszuweit, Clerk July 24, 2020 Page 2
Nevertheless, to the extent this Court would prefer to defer its decision pending the outcome of the §13(b) cases before the Supreme Court, AbbVie and Besins would have no objection.
Respectfully submitted,
Counsel for AbbVie Inc., Abbott Laboratories, and Unimed Pharmaceuticals LLC
cc: Counsel of Record (by CM/ECF)
Ex. D, Page 2 of 11
CERTIFICATE OF SERVICE
I hereby certify that on this 24th day of July, 2020, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals for
the Third Circuit using the appellate CM/ECF system. Counsel for all parties to
the case are registered CM/ECF users and will be served by the appellate CM/ECF
system.
Ex. D, Page 3 of 11
UNITED STATES OF AMERICA
Matthew M. Hoffman
Phone: (202) 326-3097
Fax: (202) 326-2477
Email: [email protected]
July 24, 2020 Patricia S. Dodszuweit, Clerk U.S. Court of Appeals for the Third Circuit 21400 U.S. Courthouse 601 Market Street Philadelphia, PA 19106
Re: FTC v. AbbVie Inc. et al., Nos. 18-2621, -2748. -2758 Dear Ms. Dodszuweit:
On July 9, 2020, the Supreme Court granted petitions for writs of certiorari in AMG Capital Management, LLC v. FTC, No. 19-508, and FTC v. Credit Bureau Center, No. 19-825 (collectively, “AMG/CBC”). These cases present the question of whether the FTC may recover monetary relief on behalf of consumers under Section 13(b) of the FTC Act, a question also presented in this case. This Court has asked the parties to submit letter briefs addressing whether it should hold these cross-appeals pending the Supreme Court’s decision in AMG/CBC.
The Court should not hold these appeals. The Court can and should resolve the monetary relief question by applying existing precedent, under which injunctive relief statutes like Section 13(b) are deemed to authorize the full panoply of equitable remedies, including monetary remedies, absent a “clear and valid legislative command” to the contrary. Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946); accord Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 291-92 (1960); United States v. Lane Labs-USA, Inc., 427 F.3d 219, 225 (3d Cir. 2005). While the Supreme Court may reconsider these precedents in AMG/CBC, its decision will not have any impact on other important issues in this case—most notably, whether the FTC has stated a claim for a reverse-payment antitrust violation. Further delay in the resolution of that issue would be prejudicial to the administration of justice.
Ex. D, Page 4 of 11
Patricia S. Dodszuweit July 24, 2020 Page 2
The FTC filed this case in September 2014. As the Court is aware, the complaint asserted both a reverse-payment claim and a sham litigation claim. The district court dismissed the reverse-payment claim in May 2015. ECF Nos. 81, 82. The FTC sought reconsideration in light of King Drug Co. v. SmithKline Beecham Corp., 791 F.3d 388 (3d Cir. 2015), which was decided shortly afterward, but the district court denied that motion. ECF Nos. 110, 118. The FTC also sought to have a partial final judgment entered on the reverse-payment claim so that it could take an immediate appeal, but the district court denied that motion in August 2015. ECF Nos. 93, 120. As a result, the FTC was unable to appeal the dismissal of the reverse-payment claim—even though it was contrary to controlling authority from this Court—until the remainder of the case was resolved. The FTC was finally able to appeal in July 2018, almost four years after the case was filed and three years after the Rule 54(b) motion was denied. Briefing the appeal took another year, with the result that it has now been nearly six years since this case was filed. Throughout that period, litigants in numerous other cases have continued to cite and rely upon the district court’s erroneous decision.
Our current understanding is that AMG/CBC is not likely to be on the Court’s argument calendar before December 2020, meaning that a final decision will not be issued until next spring—possibly as late as June or July. It will take additional time for this Court to refamiliarize itself with the issues in this case and issue a decision. Thus if the Court holds this case, the parties will be unable to move forward on the reverse-payment claim for at least another year, by which point it will have been seven years since the case was filed.
We therefore believe that the most appropriate course of action would be for the Court to decide the cross-appeals as promptly as possible, not to hold them. The Court should reverse the dismissal of the reverse payment claim and remand for further proceedings in the district court. And it should follow the controlling precedents of Porter, Mitchell, and Lane Labs and affirm the FTC’s right to recover monetary relief on the sham litigation claim.
Although the Supreme Court has the prerogative to reconsider or limit Porter and Mitchell, unless and until it does so those cases remain binding law, and this Court should apply them to affirm the monetary remedy in this case. See Lane Labs, 427 F.3d at 236. AbbVie and Besins may then petition for a writ of certiorari, which the Supreme Court presumably will hold pending its decision in AMG/CBC. If the Supreme Court ultimately affirms the availability of monetary remedies under Section 13(b), AbbVie and Besins will suffer no harm. If the
Ex. D, Page 5 of 11
Patricia S. Dodszuweit July 24, 2020 Page 3 Supreme Court changes the law and holds that Section 13(b) does not authorize monetary relief, it will summarily reverse and remand for this Court to fix the problem by simply vacating the disgorgement award.
But regardless of how the Supreme Court rules on the monetary relief question, there is no good reason to delay consideration of the reverse-payment claim. Either way, the FTC is entitled to seek an injunction barring AbbVie from entering into more unlawful reverse-payment agreements. If this Court decides the case now and remands to the district court for further proceedings on the reverse- payment claim, the parties can litigate that long-delayed issue in the district court. (Absent a stay of the mandate, which requires a showing of good cause, see Fed. R. App. P. 41, the filing of a petition for a writ of certiorari would not prevent or stay district court proceedings.) The public interest strongly favors deciding this case as expeditiously as possible, rather than holding it.
AbbVie’s Rule 28(j) letter of July 10, 2020, appears to suggest that AbbVie also supports resolving the case now, but for different reasons. AbbVie argues that if the Court reverses the merits of the sham litigation claim, it would not need to reach the Section 13(b) issues. For the reasons set forth in our briefs and at oral argument, the Court should affirm the judgment on the sham litigation claim. AbbVie also argues that that the FTC is not entitled to relief under FTC v. Shire ViroPharma, Inc., 917 F.3d 147 (3d Cir. 2019) and that the district court erred in its calculation of disgorgement. Those issues have been thoroughly litigated already, and we will not recapitulate the arguments here. See FTC Step 3 Br. 2-3, 7-10, 100-04.
Ex. D, Page 6 of 11
CERTIFICATE OF SERVICE
I certify that on July 24, 2020, I filed the foregoing letter via the Court’s electronic filing system. All parties will be served by the CM/ECF system.
/s/Matthew M. Hoffman Matthew M. Hoffman
Ex. D, Page 7 of 11
4816-7944-2628.1
FOLEY & LARDNER LLP ATTORNEYS AT LAW
WASHINGTON HARBOUR 3000 K STREET, N.W., SUITE 600 WASHINGTON, D.C. 20007-5143 202.672.5300 TEL 202.672.5399 FAX
www.foley.com
WRITER’S DIRECT LINE 202.672.5451 [email protected] Email
Patricia S. Dodszuweit, Clerk Office of the Clerk U.S. Court of Appeals for the Third Circuit 21400 U.S. Courthouse 601 Market Street Philadelphia, PA 19106-1790
Re: FTC v. AbbVie Inc. et al., Nos. 18-2621, -2748, -2758
Dear Ms. Dodszuweit:
Pursuant to this Court’s Order of July 10, 2020, requesting comments on whether this Court should hold these cross-appeals pending a Supreme Court decision in AMG Capital Mgmt., LLC, et al. v. FTC (19-508) and FTC v. Credit Bureau Center, et al. (19-825), Appellee/Cross-Appellant Besins Healthcare, Inc. (“Besins”) concurs with the view set forth in the AbbVie parties’ separately submitted letter that such a delay is not necessary.
In addition, Besins maintains that with respect to the specific disgorgement imposed by the district court on Besins, postponing a decision here until after the Supreme Court decides AMG Capital and Credit Bureau is unwarranted. Even were the Supreme Court to conclude that Section 13(b) authorizes the FTC to seek equitable disgorgement – despite the unambiguous text of Section 13(b) to the contrary – the disgorgement imposed specifically on Besins would nevertheless remain impermissibly punitive under Liu v. SEC, 140 S.Ct. 1936 (2020).
It is undisputed that Besins never received any royalties or revenues arising from U.S. sales of AndroGel. See Besins Opening/Response Br. 18; Besins Reply Br. 6; JA3472 (DX304). Imposing disgorgement on Besins, therefore, does not simply restore the status quo; rather, “it leaves the defendant worse off.” Kokesh v. SEC, 137 S. Ct. 1635, 1644-45 (2017). As the Supreme Court recognized in Liu, equity has long recognized that disgorgement cannot be based on monies accrued to another. Liu, 140 S.Ct. at 1945. Such an award becomes punitive because it constitutes an order against “those not in possession of the thing to be restored” and those who “had no power over it.” Id. (quoting Jennings v. Carson, 4 Cranch 2, 21 (1807)).
Moreover, while Lui acknowledged common law recognition of liability for partners engaged in “concerted wrongdoing,” Lui, 140 S.Ct. at 1945, the FTC made no attempt whatsoever at trial to establish “concerted wrongdoing” between Besins and any of its corporate affiliates, or to pierce the corporate status of Besins. Besins Opening/Response Br. 18-20. The district court’s imposition of
Ex. D, Page 8 of 11
4816-7944-2628.1
July 24, 2020 Page 2
disgorgement liability on Besins is therefore a “practice that could transform any equitable profits- focused remedy into a penalty.” Liu, 140 S.Ct. at 1949.
In light of the Supreme Court’s existing guidance, review of AMG and Credit Bureau will not affect the necessary conclusion here that the lower court’s imposition of disgorgement on Besins was punitive and impermissible under Liu. Nor will it redeem the lower court’s improper reliance on SEC v. Contorinis, 743 F.3d 296 (2d Cir. 2014), a decision expressly criticized by the Supreme Court in Lui as “seemingly at odds with the common-law rule requiring individual liability for wrongful profits.” Lui, 140 S.Ct. at 1949; see also Kokesh, 137 S. Ct. at 1644-45.
In sum, for these reasons, as well as those set forth in the AbbVie parties’ separately submitted letter, Besins submits that postponement of a decision on the cross-appeals in this matter is not necessary. Nevertheless, to the extent this Court would prefer to defer its decision pending the outcome of Credit Bureau and AMG Capital before the Supreme Court, Besins would have no objection.
Counsel for Besins Healthcare Inc.
cc: Counsel of Record (by CM/ECF)
BOSTON BRUSSELS CHICAGO
MADISON MIAMI MILWAUKEE NEW YORK ORLANDO SACRAMENTO
Ex. D, Page 9 of 11
4816-7944-2628.1
SAN DIEGO SAN DIEGO/DEL MAR SAN FRANCISC O SHANGHAI
S I L I C O N V A L L E Y T A L L A H A S S E E T A M P A T O K Y O W A S H I N G T O N , D . C .
Ex. D, Page 10 of 11
4829-5426-1441.24816-7944-2628.1
CERTIFICATION OF SERVICE
I certify that on this 24th day of July, 2020, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the 3rd Circuit using the appellate CM/ECF system. Counsel for all parties to these cases are registered CM/ECF users and will be served by the appellate CM/ECF system.
/s/ Gregory E. Neppl Gregory E. Neppl
Ex. D, Page 11 of 11
Exhibit C
8/27/2020 CM/ECF - California Central District
https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?393804412515968-L_1_0-1 1/1
(AFMx),CLOSED,DISCOVERY,MANADR,PROTORD
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Southern Division - Santa Ana)
CIVIL DOCKET FOR CASE #: 8:16-cv-00999-DOC-AFM
Federal Trade Commission v. Damian Kutzner et al Assigned to: Judge David O. Carter Referred to: Magistrate Judge Alexander F. MacKinnon Case in other court: 9th CCA, 17-56455
9th Circuit, 17-56476 Cause: 15:0045 Federal Trade Commission Act
Date Filed: 05/31/2016 Date Terminated: 09/21/2017 Jury Demand: None Nature of Suit: 850 Securities/Commodities Jurisdiction: U.S. Government Plaintiff
Date Entered # Docket Text
07/28/2020 487 SCHEDULING NOTICE by Judge David O. Carter. The Court DENIES the EX PARTE APPLICATION to Stay Case pending Supreme Court Cases filed by defendant Jeremy Foti 484 . THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (kd) TEXT ONLY ENTRY (Entered: 07/28/2020)
PACER Service Center Transaction Receipt
08/27/2020 14:01:04
Billable Pages: 2 Cost: 0.20
Ex. C, Page 1 of 1
1
LLC, et al Order on Expedited Motion
This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.
U.S. District Court
Southern District of Florida
Notice of Electronic Filing
The following transaction was entered on 8/3/2020 at 6:03 PM EDT and filed on 8/3/2020 Case Name: Federal Trade Commission v. Simple Health Plans, LLC, et al Case Number: 0:18-cv-62593-DPG Filer: Document Number: 314(No document attached)
Docket Text: PAPERLESS ORDER DENYING Defendants Steven Dorfman and Candida Giourard's Expedited Motion to Stay Proceedings Pending Supreme Court Review [302]. The Court, having considered the factors set forth in Nken v. Holder, 556 U.S. 418, 434 (2009), finds that is stay is not warranted. Defendants have not made a strong showing that they are likely to succeed on the merits or that they will be irreparably injured absent a stay. Indeed, the Supreme Court's decision in the consolidated appeals, Federal Trade Commission v. Credit Bureau Center, LLC, and FTC v. AMG Capital Management, LLC, will have no bearing on Defendants' liability for violations of the FTC Act and the Telemarking Sales Rule ("TSR") or whether injunctive relief is warranted. Rather, the consolidated appeals only relate to whether the FTC may obtain certain forms of penal monetary relief. Moreover, both the FTC and the public would suffer harm if a stay is issued. Signed by Judge Darrin P. Gayles (hs01)
0:18-cv-62593-DPG Notice has been electronically mailed to:
Aaron T Williams [email protected], [email protected]
Brian Hobbs Mallonee [email protected], [email protected]
2
Eric J Silver [email protected], [email protected], [email protected], [email protected], [email protected]
Joannie Wei [email protected]
Michael Ira Goldberg [email protected], [email protected], [email protected]
Naim Shakir Surgeon [email protected], [email protected], lauren.chang- [email protected]
Ryan Dwight O'Quinn [email protected], [email protected], [email protected], [email protected]
0:18-cv-62593-DPG Notice has not been delivered electronically to those listed below and will be provided by other means. For further assistance, please contact our Help Desk at 1-888-318-2260.:
Ex. B, Page 2 of 2
2020-09-01no182 Plaintiff's Opposition to Defendants' Motion to Stay Proceedings Pending Supreme Court Review
Exhibit Declaration of Gil Miller, Receiver's Accountant
ADP4821.tmp
ADPCFE7.tmp
ADPFBD2.tmp
ADP59A2.tmp

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