Case: 1:03-cv-03904 Document #: 735 Filed: 08/02/13 Page 1 of 12 PageID #:12765

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION FEDERAL TRADE COMMISSION, Plaintiff, v. KEVIN TRUDEAU, Defendant. ) ) ) ) ) ) )

Civil Action No. 03-C-3904 Honorable Robert W. Gettleman

DEFENDANT KEVIN TRUDEAUS RESPONSE TO THE FTCS PROPOSED RECEIVERSHIP ORDER

Kimball R. Anderson (kanderson@winston.com) Thomas L. Kirsch II (tkirsch@winston.com) Katherine E. Rohlf (krohlf@winston.com) WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, Illinois 60601 Telephone: 312-558-5600 Facsimile: 312-558-5700

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I.

INTRODUCTION This Court ordered the FTC to submit a proposed order appointing a receiver in this case.

(Docket No. 733) and ordered Trudeau to respond within 24 hours. Instead of submitting what should have been a straightforward receivership order, the FTC has over-reached by submitting a Proposed Order that attempts a worldwide freeze of not only Mr. Trudeaus assets (past, present and future), but also those of many innocent persons and entities around the globe who are not before this court. The FTCs Proposed Order fails to heed the statutory framework of the Federal Debt Collection Procedures Act (FDCPA), 28 U.S.C. 3001 et seq., and tramples on the due process rights of many others who are not parties to this lawsuit or judgment. The uncontradicted record evidence before the court demonstrated that at least some of the entities that the FTC now wants to define as Trudeau Entities are owned by Trudeaus wife, were funded by Trudeaus wifes separate assets (i.e., not with the proceeds of any fraud), and/or have no owners (e.g., Global Information Network FDN). (Docket No. 710, Ex. 50 at 64:19-20 ([Ms. Babenko] became our client. She hired us. She paid us to set up the entity.), 112:2-3 (And [Ms. Babenko], in fact, is the one who paid my fee to set up the companies.), 137:13-138:5 (testifying that all funding for GIN was provided by Ms. Babenko), 110:23-111:4 (Q: But did you assist Mr. Trudeaus wife, Natalie Babenko, in establishing business entities after the judgment in this case was entered? . . . A: Yes, sir, I did.), 112:10-13 (So I fully understood at that time that this was a bona fide arrangement whereby Ms. Babenko would in fact own this company not as anybodys nominee, but in her own right and based upon her own capabilities.).) Ms. Babenko is not a judgment debtor and there is no finding or other record evidence that Mr. Trudeau has legal ownership or other control over Ms. Babenkos assets.

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Also uncontradicted is record evidence that some of these entities are operating businesses, with dozens of employees, many creditors other than the FTC, and contractual obligations to many, including thousands of GIN members. The FTCs proposed order

effectively shuts down these companies without notice, without due process of law, without in personam jurisdiction over them, and without any statutory authority for doing so. Equally disturbing, the proposed order eliminates Mr. Trudeaus ability to earn a living, deprives him of counsel, and eliminates any hope that he has to fund a consumer remediation plan. The proposed order flatly prohibits him from doing any business with the companies that promote his books and speaking events the very means by which he has to earn monies to pay the judgment. At bottom, the proposed order defeats the whole purpose of effecting consumer remediation. We urge this Court to enter an order that effects consumer remediation and not an order that injures innocent persons across the globe.1 If the FTC has its way now, with its proposed order, there will be real consumer injury. Losing sight of the goal here, namely to offer refunds to purchasers of the Weight Loss Curers book who want one, the FTC asks this Court to swing a worldwide wrecking ball that will injure many employees, who will lose their jobs, deprive thousands of members/customers of goods and services that they have paid for, and deprive other creditors of amounts due them. This is not in the public interest.

The notion that consumers were injured by the Weight Loss Cures infomercial is a legal fiction. The FTC rode a presumption of harm all the way to the U.S. Supreme Court all the while unable to identify a single consumer who wanted a refund. Years have gone by and no consumer has sought a refund; no consumer has complained of fraud; and no evidence of actual injury exists. We point out these facts, not to reargue the judgment, but to impose some sense of proportionality. The FTCs proposed Order now will really hurt innocent people. 2

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We do not represent any of these entities and persons who will be harmed except for Mr. Trudeau. But we must point out the injury to others that the FTC seeks to cause, let alone the injury to Mr. Trudeau who will be deprived of the right to work, the right to travel, the right to counsel on the eve of a major criminal trial,2 the right to associate with anyone who fears that their livelihood and assets will be seized by the FTC, and the right to have privileged communications with his counsel of choice. punishment. In the 24 hours that we have been given to respond to the FTCs proposed order, we cannot (nor can our client afford to) exhaustively research the constitutional and jurisdiction problems raised by the FTCs over-reaching. In the limited time available, we discuss the operative statutory framework and catalogue below some of the more obvious problems with the FTCs proposed order. II. ARGUMENT The FTCs Proposed Order, which amounts to a worldwide injunction against any individual or entity who attempts to do business with Trudeau, is violative of the FDCPA and well-established due process norms. A. The Receivership Order Should Comply With The FDCPA. This is not remediation; it is unprecedented

The FDCPA provides the exclusive civil procedures for the United States (1) to recover a judgment on a debt; or (2) to obtain, before judgment on a claim for a debt, a remedy in connection with such claim. 28 U.S.C. 3001 (emphasis added). A judgment is defined broadly as a judgment, order, or decree entered in favor of the United States in a court and The Sixth Amendment guarantees that [i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence, and the Supreme Court has concluded that language encompasses a defendants right to choose who will represent him. United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). 3
2

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arising from a civil or criminal proceeding regarding a debt. 28 U.S.C. 3002(8). A debt is also defined quite broadly, including (B) an amount that is owing to the United States on account of a fine, assessment, penalty, restitution, damages, interest, tax, bail bond forfeiture, reimbursement, recovery of a cost incurred by the United States, or other source of indebtedness to the United States, but that is not owing under the terms of a contract originally entered into by only persons other than the United States . . . 28 U.S.C. 3002(3)(B). Judgments owed to the FTC for the purposes of consumer redress are governed by the FDCPA. FTC v. Natl Bus. Consultants, 376 F.3d 317, 319-20 (5th Cir. 2004) (holding the FDCPA applicable to the unpaid judgment owed to the FTC, because the appellants were liable for the entire amount of the judgment to the FTC, not to private individuals, and because [t]he FTC is considered the United States for purposes of the FDCPA); id. (Although a portion of the judgment representing the damages awarded for consumer redress may ultimately be paid by the government to the defrauded franchisees, nothing in the statutory text requires that the government be the exclusive beneficiary of the judgment for the statute to apply.). Sections 3201-3206 of the FDCPA govern post judgment remedies that are available to the federal government (here, the FTC) in order to enforce its judgment. 28 U.S.C. 3202 (A judgment may be enforced by any of the remedies set forth in this subchapter. A court may issue other writs pursuant to section 1651 of title 28, United States Code, as necessary to support such remedies, subject to rule 81(b) of the Federal Rules of Civil Procedure.). Importantly, the FTC is required under the FDCPA to serve the debtor with a notice of his or her rights and that certain property and income are exempt. See 28 U.S.C. 3202(b) (providing required form of notice). After proper notice, the FTC has certain remedies available to it, such as creating a lien on certain non-exempt property through a writ of execution. See 18 U.S.C. 3203(b)-(c). The

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court may also appoint a receiver to manage any property while a levy of execution is pending, and may seek the sale of certain real or personal property to satisfy the debt. 28 U.S.C. 3203(e), (g). Finally, the FTC may seek a writ of garnishment in order to collect on the debt. 28 U.S.C. 3205. The FDCPA allows garnishment of up to 25% of the debtors disposable earnings. 28 U.S.C. 3002(9). Section 3202(e) provides for the appointment of a receiver as follows: (e) Appointment of receiver. Pending the levy of execution, the court may appoint a receiver to manage property described in such [writ] if there is a substantial danger that the property will be removed from the jurisdiction of the court, lost, materially injured or damaged, or mismanaged. 28 U.S.C. 3203(e). Section 3203(a) identifies the property that is subject to levy via attachment or receivership: (a) Property subject to execution. All property in which the judgment debtor has a substantial nonexempt interest shall be subject to levy pursuant to a writ of execution. The debtors earnings shall not be subject to execution while in the possession, custody, or control of the debtors employer. Co-owned property shall be subject to execution to the extent such property is subject to execution under the law of the State in which it is located. 28 U.S.C. 3203(a). Nothing in the FDCPA, or any other Congressional authorization, permits the FTC to obtain a worldwide freeze on the assets of Mr. Trudeau or anyone who does business with him. The only statutory authority cited by the FTC is the United States Bankruptcy Code, 11 U.S.C. 522(d). Ironically, the FTC vigorously resisted Mr. Trudeaus efforts to avail himself of the Bankruptcy Code and now the FTC mistakenly attempts to embrace it. But the Bankruptcy Code provides no basis for the relief sought by the FTC against Mr. Trudeau.

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Equally shocking, the FTC would have this Court enjoin many persons and entities who are not judgment debtors from exercising their constitutional right (Article 1, Section 8, Clause 4 of the United States Constitution) and statutory right to seek protection under the United States Bankruptcy Code.3 Characteristically, the FTC cites no authority for its apparent proposition that this Court can eviscerate the constitutional and statutory rights of anyone to seek protection under the Bankruptcy Code. We are submitting herewith a proposed alternative form order appointing a receiver. We urge the Court to adopt it. If the FTCs proposed order is not scrapped in its entirety, substantial portions of the FTCs Proposed Order should be redrafted to explicitly incorporate the provisions of the FDCPA, including the notice requirements of 28 U.S.C. 3202(b) and 28 U.S.C. 3002(9)s exemption for garnishment of income beyond 25% of Trudeaus disposable earnings. At least the following provisions in the Proposed Order should be redrafted to reflect the provisions of the FDCPA: The definition of Assets should be modified to reflect that Trudeau is entitled to the protections of the FDCPA. (Proposed Order at 2(I2).) Page 5 of the Proposed Order states, [n]otwithstanding anything this order otherwise provides, the Receiver shall allow Trudeau sufficient funds and property for ordinary and necessary living expenses. This provision should be modified to reflect the explicit protections of the FDCPA. In particular, it should note that the FTC is only entitled to garnishment of no more than 25% of Trudeaus disposable earnings. 28 U.S.C. 3002(9). Similarly, Page 9(V7), states that the Receiver is directed and authorized to [c]ollect any money due or owing to Trudeau or to any Trudeau Entity including without limitation, member dues, salaries, and royalties payable to Trudeau or on

The FTC seeks the following: It is further ordered that, in light of the appointment of the Receiver, the Trudeau Entities are prohibited from filing petitions for relief under the United States Bankruptcy Code, 11 U.S.C. 101 et seq., or any other similar insolvency proceeding, without prior permission from this Court. 6

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behalf of Trudeau or persons or entities Trudeau controls. This provision should be subject to 28 U.S.C. 3002(9)s exemption. Page 11 (VI2) states [a]ll remuneration of any type paid to Trudeau from any source after June 26, 2013 must be remitted to the Receiver directly (and Trudeau is prohibited from receiving such remuneration). This provision should also be subject to 28 U.S.C. 3002(9)s exemption. The Proposed Order Violates Well-Established Due Process Principles.

B.

Any attempt to freeze the assets of non-culpable third parties is improper. SEC v. Black, 163 F.3d 188, 196 (3rd Cir. 1998). A district court has authority to freeze assets only to the extent that the assets are under the control of a person under the courts in personam jurisdiction. See, e.g., United States v. First Nat. City Bank, 379 U.S. 378, 384 (1965) (Once personal jurisdiction of a party is obtained, the District Court has authority to order it to freeze property under [the partys] control...). As recognized in McGregor v. Chierico, 206 F.3d 1378, 1385 (11th Cir. 2000), While this argument certainly deepens the pocket from which the FTC can collect, it ignores the fact that a court cannot use its contempt power to acquire assets owned by innocent individuals. Fundamental fairness requires that [contemnors wife] not be held liable for consumer redress when she did not participate in any acts which caused harm to consumers. Here, the uncontroverted record evidence is that Mr. Trudeaus wife, Ms. Babenko, formed some of the so-called Trudeau Entities with her own money. (Docket No. 710, Ex. 50 at 64:19-20 ([Ms. Babenko] became our client. She hired us. She paid us to set up the entity.), 112:2-3 (And [Ms. Babenko], in fact, is the one who paid my fee to set up the companies.), 137:13138:5 (testifying that all funding for GIN was provided by Ms. Babenko).) The uncontroverted evidence is that Mr. Trudeau never transferred, without or without consideration, any of his own assets. (Id. at 110:9-12 (Q: And do we see as a pattern throughout the e-mails that have been tendered to the Court as exhibits in this case you counseling against fraudulent conveyances? A: 7

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Universally.); see also id. at 114:16-19 (Q: Sir, are you aware of Mr. Trudeau transferring any asset after 2007 or 2008? A: . . . I cannot think of an example.), 119:15-17 (Q: And weve talked about transfer[ring] any assets, which to your knowledge never happened, right? A: Thats right.), 121:10-17 (Q: All right, sir. As you sit here now today do you have any evidence or any knowledge of Mr. Trudeau having engaged in a fraudulent transfer? A: I dont. Q: Have you seen any evidence in connection with this case that the FTC has produced that Mr. Trudeau engaged in a fraudulent transfer? A: Im unaware of any.), 123:24-124:2 (Q: Sir, to your knowledge, did Mr. Trudeau ever transfer any of his salary from KTRN to a personal bank account in Australia? A: Not to my knowledge.).) The FTC has no lawful right to grab Ms. Babenkos assets under the FDCPA or any other statutory authority. By way of further example, the Natural Cures Health Institute (NCHI) is not properly before this Court. NCHI is an Illinois not-for-profit corporation that was established in 2005. Assets held by NCHI were donated by independent third parties for the sole purpose of funding Mr. Trudeaus legal battles. Potential donors can donate money to NCHI by logging on to the website http://standwithkt.com. Donors may contribute monies using a credit card, or they can send a check made out to Natural Cures Health Institute to the company. All money donated is then deposited into the bank account for NCHI, which is held by Albany Bank & Trust. Trudeau is not a signatory on the NCHI bank account and does not have direct access to the funds therein. Funds that are withdrawn from NCHI are used to pay legal fees directly. For example, when a legal invoice is submitted to NCHI, a bank signatory (i.e. Michael Dow) then puts in a wire request to the bank, and funds are wired directly to the law firm. Accordingly, NCHI funds are

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never under the control of Trudeau.4 Therefore, absent a showing that Trudeau controls each of the so-called Trudeau Entities or otherwise has proper jurisdiction over these entities, the Court should reject the FTCs Proposed Order. III. CONCLUSION Kevin Trudeau respectfully requests that this Court reject the FTCs Proposed Order Appointing A Receiver And Implementing Ancillary Relief. (Docket No. 731.) and enter an order consistent with the provisions of the FDCPA and with applicable law. Specifically, the receiver should be appointed to exercise all of Mr. Trudeaus right and title to any assets available to pay the judgment. To the extent that those assets include operating businesses, the receiver can operate those businesses and maximize the net assets, if any, to pay the judgment. The FTCs proposed order, however, just lays waste to everything and everyone. It should be rejected. As an alternative to the FTCs proposed order, we submit the attached proposed Order Appointing Receiver (attached as Exhibit A).

August 2, 2013

Respectfully submitted, KEVIN TRUDEAU By: /s/ Kimball R. Anderson One of His Attorneys

Because NCHI is an independent not-for-profit corporation that is exclusively funded by thirdparty donors, the money held by NCHI does not fall within the scope of the Freeze Order. Individuals donated money with the knowledge and intent that it be used for a specific purpose: to defray Trudeaus legal costs. To allow such funds to be used to pay the FTC judgment would be a misuse of those funds and, in essence, a fraud on the people who donated the money in the first place. 9

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Kimball R. Anderson (kanderson@winston.com) Thomas L. Kirsch II (tkirsch@winston.com) Katherine E. Rohlf (krohlf@winston.com) WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, Illinois 60601 312-558-5600

10

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CERTIFICATE OF SERVICE I, Kimball R. Anderson, an attorney, hereby certify that on August 2, 2013, I caused to be served true copies of DEFENDANT KEVIN TRUDEAUS RESPONSE TO THE FTCS PROPOSED RECEIVERSHIP ORDER, by filing such documents through the Courts Electronic Case Filing System, which will send notification of such filing to: Michael Mora Jonathan Cohen Amanda Kostner Federal Trade Commission 601 New Jersey Avenue NW, Suite 2215 Washington, DC 20001 David OToole Federal Trade Commission 55 West Monroe Street, Suite 1825 Chicago, IL 60603

/s/ Kimball R. Anderson Kimball R. Anderson

11

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Exhibit A

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION FEDERAL TRADE COMMISSION, Plaintiff, v. KEVIN TRUDEAU, Defendant. ) ) ) ) ) ) ) ) )

Civil Action No. 03-C-3904

Honorable Robert W. Gettleman

ORDER APPOINTING RECEIVER 1. Appointment of Receiver. Upon the motion of the Plaintiff Federal Trade Commission (FTC), and pursuant to the Federal Debt Collection Procedures Act, 28 U.S.C. 3202(e), the Court hereby appoints Robb Evans & Associates LLC (Receiver) as a receiver in this case. The Receiver is hereby empowered and authorized to do any of the following where the Receiver considers it necessary or desirable: (a) to take possession of and exercise control over any and all assets owned or controlled by the debtor Kevin Trudeau (Debtor), and any and all proceeds, receipts, and disbursements arising out of or from the assets; (b) to receive, preserve, and protect of the assets, or any part or parts thereof, including, but not limited to, the changing of locks and security codes, the relocating of assets to safeguard them, the engaging of independent security personnel, the taking of physical inventories, and the placement of such insurance coverage as may be necessary or desirable; (c) to manage, operate, and carry on the business of the Debtor, including the powers to enter into any agreements, incur any obligations in the ordinary course of business, cease to carry on all or any part of the business, or cease to perform any contracts of the Debtor; (d) to engage consultants, appraisers, agents, experts, auditors, accountants, managers, counsel, and such other persons from time to time and on whatever basis, including on a temporary basis, to assist with the exercise of the Receivers powers and duties, including without limitation those conferred by this Order; (e) to purchase or lease such machinery, equipment, inventories, supplies, premises, or other assets to continue the business of the Debtor or any part or parts thereof;

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(f) to receive and collect all monies and accounts now owed or hereafter owing to the Debtor and to exercise all remedies of the Debtor in collecting such monies, including, without limitation, to enforce any security held by the Debtor; (g) to settle, extend, or compromise any indebtedness owing to the Debtor; (h) to execute, assign, issue, and endorse documents of whatever nature in respect of any of the Property, whether in the Receivers name or in the name and on behalf of the Debtor, for any purpose pursuant to this Order; (i) to initiate, prosecute, and continue the prosecution of any and all proceedings and to defend all proceedings now pending or hereafter instituted with respect to the Debtor, the Property, or the Receiver, and to settle or compromise any such proceedings. The authority hereby conveyed shall extend to such appeals or applications for judicial review in respect of any order or judgment pronounced in any such proceeding; (j) to market any or all of the Debtors assets, including advertising and soliciting offers in respect of the assets or any part or parts thereof and negotiating such terms and conditions of sale as the Receiver in its discretion may deem appropriate; and (k) with the approval of the Court, to sell, convey, transfer, lease, or assign the assets or any part or parts thereof out of the ordinary course of business. 2. Duty to Cooperate. This Court orders that (i) the Debtor, (ii) all of his current and former employees, agents, accountants, legal counsel, and shareholders, and all other persons acting on its instructions or behalf, and (iii) all other individuals, firms, corporations, governmental bodies or agencies, or other entities having notice of this Order (all of the foregoing, collectively, being Persons) shall forthwith advise the Receiver of the existence of any assets owned or controlled by the Debtor and in such Person's possession or control, shall grant immediate and continued access to the assets to the Receiver, and shall deliver all such assets to the Receiver upon the Receivers request. All Persons shall forthwith advise the Receiver of the existence of any books, documents, securities, contracts, orders, corporate and accounting records, and any other papers, records, and information of any kind related to the business or affairs of the Debtor, and any computer programs, computer tapes, computer disks, or other data storage media containing any such information (the foregoing, collectively, the Records) in that Persons possession or control, and shall provide to the Receiver or permit the Receiver to make, retain and take away copies thereof and grant to the Receiver unfettered access to and use of accounting, computer, software and physical facilities relating thereto, provided, however, that nothing in this Order shall require the delivery of Records, or the granting of access to Records, which may not be disclosed or provided to the Receiver due to the privilege attaching to attorney-client communication or due to statutory provisions prohibiting such disclosure. If any Records are stored or otherwise contained on a computer or other electronic system of information storage, whether by independent service provider or otherwise, all Persons in possession or control of such Records shall forthwith give unfettered access to the Receiver for the purpose of allowing the Receiver to recover and fully copy all of the information contained therein, whether by way of printing the information onto paper or making copies of computer disks or such other manner 2

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of retrieving and copying the information as the Receiver in its discretion deems expedient, and shall not alter, erase, or destroy any Records without the prior written consent of the Receiver. Further, for the purposes of this paragraph, all Persons shall provide the Receiver with all such assistance in gaining immediate access to the information in the Records as the Receiver may in its discretion require, including providing the Receiver with instructions on the use of any computer or other system and providing the Receiver with any and all access codes, account names, and account numbers that may be required to gain access to the information. 3. Receiver to Hold Funds. All funds, monies, checks, instruments, and other forms of payments received or collected by the Receiver from and after the making of this Order from any source whatsoever, including without limitation the sale of all or any of the Debtors assets and the collection of any accounts receivable in whole or in part, whether in existence on the date of this Order or hereafter coming into existence, shall be deposited into one or more new accounts to be opened by the Receiver (the Post Receivership Accounts) and the monies standing to the credit of such Post Receivership Accounts from time to time, net of any disbursements provided for herein, shall be held by the Receiver to be paid in accordance with the terms of this Order or any further Order of this Court. 4. Employees. All employees of the Debtor shall remain the employees of the Debtor until such time as the Receiver, on the Debtors behalf, may terminate the employment of such employees. The Receiver shall not be liable for any employee-related liabilities. 5. Funding of the Receivership. The Receiver shall be paid for services, upon approval of the Court, from funds generated by the liquidation of the Debtors assets. In the event that such funds are insufficient, the Receiver may apply to this Court for payment from the proceeds of a $2 million bond previously placed on deposit with this Court by the Debtor. 6. Amendments. Any interested party may apply to this Court to vary or amend this Order on not less than seven (7) days notice to the Receiver and to any other party likely to be affected by the order sought or upon such other notice, if any, as this Court may order. So ordered:

___________________________________ Robert W. Gettleman United States District Court Judge August __, 2013