Transcript of 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 cguerard@ftc.gov;
jdoan@ftc.gov; agrier@ftc.gov 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 rwing@agutah.gov; joniostler@agutah.gov;
kmclean@agutah.gov 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
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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
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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
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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.
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Plaintiffs’ Opposition to Stay Motion 2
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
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Plaintiffs’ Opposition to Stay Motion 3
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.
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Plaintiffs’ Opposition to Stay Motion 4
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
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Plaintiffs’ Opposition to Stay Motion 5
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).
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Plaintiffs’ Opposition to Stay Motion 6
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.
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Plaintiffs’ Opposition to Stay Motion 7
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.
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Plaintiffs’ Opposition to Stay Motion 8
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.
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Plaintiffs’ Opposition to Stay Motion 9
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,
Case 2:19-cv-00713-DAK-DAO Document 182 Filed 09/01/20 PageID.11322
Page 12 of 15
Plaintiffs’ Opposition to Stay Motion 10
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: cguerard@ftc.gov Email:
jdoan@ftc.gov 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.
Case 2:19-cv-00713-DAK-DAO Document 182 Filed 09/01/20 PageID.11323
Page 13 of 15
Plaintiffs’ Opposition to Stay Motion 11
/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: rwing@agutah.gov Email:
joniostler@agutah.gov Email: kmclean@agutah.gov Attorneys for
Plaintiff UTAH DIVISION OF CONSUMER PROTECTION
Case 2:19-cv-00713-DAK-DAO Document 182 Filed 09/01/20 PageID.11324
Page 14 of 15
Plaintiffs’ Opposition to Stay Motion 12
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: ebenson@rqn.com Email:
rpahnke@rqn.com Mark L. Smith D. Loren Washburn SMITH WASHBURN, LLP
8 East Broadway, Suite 320 Salt Lake City, UT 84111 Telephone:
801-584-1800 Email: msmith@smithwashburn.com Email:
lwashburn@smithwashburn.com
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: bmoss@atllp.com Email:
mgehret@atllip.com Attorneys for the Zurixx Trust Defendants
/s/ Collot Guerard Collot Guerard
Case 2:19-cv-00713-DAK-DAO Document 182 Filed 09/01/20 PageID.11325
Page 15 of 15
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
Case 2:19-cv-00713-DAK-DAO Document 182-1 Filed 09/01/20
PageID.11327 Page 2 of 4
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
Case 2:19-cv-00713-DAK-DAO Document 182-1 Filed 09/01/20
PageID.11328 Page 3 of 4
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
Case 2:19-cv-00713-DAK-DAO Document 182-1 Filed 09/01/20
PageID.11329 Page 4 of 4
Exhibit D
Case 2:19-cv-00713-DAK-DAO Document 182-4 Filed 09/01/20
PageID.11335 Page 1 of 12
Seth P. Waxman
+1 202 663 6800 (t) +1 202 663 6363 (f)
seth.waxman@wilmerhale.com
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.
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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)
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Ex. D, Page 2 of 11
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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.
Case: 18-2621 Document: 240 Page: 3 Date Filed: 07/24/2020
Ex. D, Page 3 of 11
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PageID.11338 Page 4 of 12
UNITED STATES OF AMERICA
Matthew M. Hoffman
Phone: (202) 326-3097
Fax: (202) 326-2477
Email: mhoffman@ftc.gov
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.
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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
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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.
Respectfully submitted,
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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
Case: 18-2621 Document: 241 Page: 4 Date Filed: 07/24/2020
Ex. D, Page 7 of 11
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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 gneppl@foley.com 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
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Ex. D, Page 8 of 11
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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.
Respectfully submitted,
Counsel for Besins Healthcare Inc.
cc: Counsel of Record (by CM/ECF)
BOSTON BRUSSELS CHICAGO
MADISON MIAMI MILWAUKEE NEW YORK ORLANDO SACRAMENTO
Case: 18-2621 Document: 242 Page: 2 Date Filed: 07/24/2020
Ex. D, Page 9 of 11
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PageID.11344 Page 10 of 12
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 .
Case: 18-2621 Document: 242 Page: 3 Date Filed: 07/24/2020
Ex. D, Page 10 of 11
Case 2:19-cv-00713-DAK-DAO Document 182-4 Filed 09/01/20
PageID.11345 Page 11 of 12
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
Case: 18-2621 Document: 242 Page: 4 Date Filed: 07/24/2020
Ex. D, Page 11 of 11
Case 2:19-cv-00713-DAK-DAO Document 182-4 Filed 09/01/20
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Exhibit C
Case 2:19-cv-00713-DAK-DAO Document 182-3 Filed 09/01/20
PageID.11333 Page 1 of 2
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
Case 2:19-cv-00713-DAK-DAO Document 182-3 Filed 09/01/20
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Case 2:19-cv-00713-DAK-DAO Document 182-2 Filed 09/01/20
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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 aaron.williams@gmlaw.com,
agatha.mctier@gmlaw.com
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Case 2:19-cv-00713-DAK-DAO Document 182-2 Filed 09/01/20
PageID.11331 Page 2 of 3
2
Eric J Silver esilver@stearnsweaver.com, cgraver@stearnsweaver.com,
larrazola@stearnsweaver.com, mfernandez@stearnsweaver.com,
rross@stearnsweaver.com
Joannie Wei jwei@ftc.gov
Michael Ira Goldberg michael.goldberg@akerman.com,
charlene.cerda@akerman.com, kimberly.matregrano@akerman.com
Naim Shakir Surgeon naim.surgeon@akerman.com,
kelly.connolly@akerman.com, lauren.chang-
williams@akerman.com
Ryan Dwight O'Quinn ryan.oquinn@dlapiper.com,
docketingchicago@dlapiper.com, javier.rodriguez@dlapiper.com,
ryan-oquinn-0619@ecf.pacerpro.com
0:18-cv-62593-DPG Notice has not been delivered electronically to
those listed below and will be provided by other means. For further
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Ex. B, Page 2 of 2
Case 2:19-cv-00713-DAK-DAO Document 182-2 Filed 09/01/20
PageID.11332 Page 3 of 3
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