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In addition, bankruptcy provides the only federal forum designed to assess and restructure a business under judicial oversight and, pursuant to a comprehensive statutory structure, address the interests of all constituencies affected by the future of Vemma. Vemma's business is the marketing and sale of the following four lines of health, energy, lifestyle, and fitness products (the "Vemma Products"): • • • • Vemma. In addition to their own sales revenues, Affiliates may recruit additional Affiliates in downlines who purchase product directly from Vemma. Furthermore, the financial data demonstrates that Affiliates are not in it for the business opportunity as asserted by the FTC. See Burn Lounge, 753 F.3d at 833; Omnitrition, 79 F.3d at 782. Second, Vemma’s income disclosures are not false or misleading. “When determining whether statements amount only to puffery, the court must analyze the context in which the statements were made.” In re Bridgepoint Educ., Inc. When viewed against the backdrop of all the information Vemma provided to Affiliates and customers, and the sales data indicating how consumers react to that information, the statements characterized as actionable misrepresentations by the FTC amount to nothing more than a sales pitch. Accordingly, the FTC has not met its burden that it has a likelihood of success on the merits in the FTC Action, nor does it meet its burden that assets should remain frozen, and that a receiver should remain in control of Vemma’s assets and business operations. Vemma’s Business Operations In The United States And Abroad. The Vemma Nutrition Company (“Vemma Nutrition”) is an Arizona Corporation formed in 2004 for the purpose of developing, marketing, and selling a wide array of health, energy, lifestyle, and fitness products. (“Vemma Holdings”), is an Arizona corporation and Vemma Nutrition’s parent company. Vemma is a clinically-studied liquid vitamin drink. Active -6- QB408757.7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case -cv-01578-JJT Document 74 Filed 09/10/15 Page 7 of 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Affiliates may earn bonuses during a 4-week cycle on account of the purchases made by their Affiliates in their downlines. Affiliates may choose to purchase a pack of Vemma products, marketing materials, and product information at the cost of 0.00 (an “Affiliate Pack”), which would qualify them for bonuses set forth above. The average monthly auto-ship by an Affiliate is less than 120 QV. The sales data also illustrates that Vemma’s portion of revenue attributable to the sale of Affiliate Packs and Affiliate auto-ship purchases is just 47% in 2014, down to 41% in 2015 – not even a majority of Vemma’s sales, let alone the “vast majority” the FTC told this Court it would come forward with after a receiver was appointed. ¶ 42, n.17; MCA Report, § -7- QB408757.7 Case -cv-01578-JJT Document 74 Filed 09/10/15 Page 8 of 47 VII(C), p. Since the time he took control of Vemma, the temporary receiver has gathered volumes of data, including, Affiliate figures, Affiliate Pack sales figures, auto- ship sales figures, and related sales and financial information. The FTC has already conceded – as it must – that Vemma does not have any sign up fee to become an Affiliate. ¶ 23 (Vemma Affiliate Agreement Terms and Conditions, § 5 (“Do I need to buy Vemma products to become an Affiliate? They are accurate disclosures of earnings actually received by Affiliates. Because the FTC has failed to show that Vemma’s statements regarding income are “likely to mislead customers acting reasonably under the circumstances”, Gill, 265 F.3d at 956, the FTC has failed to carry its burden for obtaining injunctive relief on its misrepresentation claim. To this day, the temporary receiver has failed to pay any of Vemma's creditors, and he has provided no explanation to the thousands of Vemma affiliates and customers affected by his actions. 2001) (denying appointment of receiver as part of preliminary injunction because less restrictive measures would be sufficient to preserve the defendants’ financial assets and protect the public interest). The temporary receiver has greatly impaired the defendants’ ability to mount a defense to the FTC’s allegations, which the FTC developed as part of a year-long investigation. Ultimately, the district court may consider a host of relevant factors, and no single factor is dispositive. The plaintiff bears the burden of proving that these factors are present in such a way that makes the appointment of a receiver necessary. Bod-e Cleanse and Bod-e Rest are liquid blends designed to cleanse and restore the body. Virtually all of Vemma’s revenues derive from the sale of its products described above. The vast majority of these creditors are third party vendors with no relationship to Vemma. Prior to the Field Watch service, Vemma manually employed processes and procedures to search the internet for Affiliate misconduct and policy violations. The compliance department would enforce this policy by contacting randomly-selected Affiliates each month to obtain a certification that the Affiliates were complying with the policy. However, the FTC has acknowledged (as it must) that its claims have no merit if the data does not come out as it assumes, and the FTC has acknowledged what the data must show. 2012) (denying FTC’s motion for temporary restraining order without addressing the “equities” when FTC failed to show a likelihood of success on the merits). Boreyko and certain independent Affiliates encouraging people to buy an Affiliate Pack and then go on auto-ship at an amount of 0 per month. at 11-12.] Mere encouragement, however, is not enough to satisfy the first part of the Koscot test concerning a required purchase. All Affiliates who earned a commission at any time during the calendar year for that disclosure period are reflected in the statistics. The appointment of a receiver interferes severely with a defendant’s property rights by ousting him or her from control. Therefore, “[t]he appointment of a receiver is considered to be an extraordinary remedy that should be employed with the utmost caution and granted only in cases of clear necessity to protect plaintiff’s interests in the property.” Id. Miller, Federal Practice and Procedure § 2983, at 24 (2d ed.1997)). Vemma Next, which is a liquid blend of vitamins, minerals, and fatty acids designed for children. ¶ 15.] -5- QB408757.7 Case -cv-01578-JJT Document 74 Filed 09/10/15 Page 6 of 47 3. Almost every Affiliate certified that he/she either consumed or retailed at least 70% of the product they he/she purchased. On the occasion that an Affiliate would not so certify, then such Affiliate would be reminded that product purchases (including auto-ship) would be placed on hold (if applicable). links The compliance department at Vemma further held multiple training sessions at conferences, and distributed compliance and training videos to Affiliates by electronic mail through Vemma’s “Insider” weekly electronic publication. At the Ex Parte Hearing, the FTC told this Court: We believe that, ultimately, when we obtain the company’s records, we’re going to determine that the vast majority of the purchases, or at least a solid majority of the purchases, were what we consider cost of the business participation, which would be the 0 Affiliate Pack, the 0 a month auto- delivery which the company, in its own statements, has made very clear it considers a cost of doing business in this business model. But even considering the equities based on the facts now before the Court – and not the unfounded opinions that the FTC relied upon before – the balance would tip heavily in favor of Vemma. See Omnitrition, 79 F.3d at 782 (“The ‘payment of money’ element of a pyramid scheme can be met where the participant is required to purchase ‘non returnable’ inventory in order to receive the full 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 -21- QB408757.7 Case -cv-01578-JJT Document 74 Filed 09/10/15 Page 22 of 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 benefits of the program”) (emphasis added). By definition, these Affiliates were “active” because “inactive” Affiliates would not have earned the commission.6 On the face of the Disclosure Statements, Vemma makes clear that the information stated reflects average annual earnings. It is such an extraordinary remedy that it is -35- QB408757.7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case -cv-01578-JJT Document 74 Filed 09/10/15 Page 36 of 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 “warranted only by the most compelling circumstances.” Bracco v. Verve, which includes Verve, Verve Bold, Verve Remix, Verve Zero Sugar, Verve Partea, and Verve Energy Shot. The Temporary Receiver’s Report does not even mention those items. He further admits that if those procedures are followed, the procedures would result in effective monitoring of the activities of the Affiliates to identify misconduct and take appropriate disciplinary action. Up until the time the temporary receiver terminated them, Vemma also employed no fewer than four full-time employees dedicated to the development and monitoring of Vemma’s internal and external compliance policies, and the enforcement thereof. Vemma had reasonable compliance policies and enforcement procedures to identify misconduct of the Affiliates and take action. The most recent application of the Koscot test in this circuit was in Burn Lounge, where the Ninth Circuit stated the Koscot test as follows: a pyramid scheme is characterized by the payment by participants of money to the company in return for which they receive (1) the right to sell a product and (2) the right to receive in return for recruiting other participants into the program rewards which are unrelated to sale of the product to ultimate users. The second part of the Koscot test is “the sine qua non of a pyramid scheme” Omnitrition, 79 F.3d at 781, and is driven, in large part, out of a concern over “inventory loading” – a practice that “requires a person seeking to become a distributor to pay a large sum of money, either as an entry fee . ¶ 40, n.5.] Instead, the FTC is attempting to satisfy the first part of the Koscot test based on a theory that, under the Vemma compensation plan, a distributor is required to purchase non-returnable inventory. the false impression to create To support its misrepresentation claim, the FTC has cherry-picked isolated statements income opportunities to consumers. Vemma’s Earnings Disclosure Statements Are Not False Or Misleading. These are energy and caffeinated drinks and supplements designed to revitalize energy levels and provide antioxidants and other nutrients. Vemma is a type of multi-level marketing (MLM) company that markets and sells its products through a network of distributors that are independent contractors (“Affiliates”), and to end users that consume the product. Affiliates may sell their product purchases from Vemma to end users, or they may consume their own product as an end user. The temporary receiver also states that the Affiliate Application (Terms and Conditions) are well written. The temporary receiver acknowledges the high level of experience and competency of the employees in the compliance department. For example, in January 2015, Vemma executed an agreement with Momentum Factor to use a web-based, -8- QB408757.7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case -cv-01578-JJT Document 74 Filed 09/10/15 Page 9 of 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 internet-search service called “Field Watch.” Under the agreement for Field Watch, Momentum Factor would scour the internet using Vemma-related search terms and gather “hits” of websites that contained the terms. 13, 2013) (“In deciding whether the FTC has made a ‘proper showing’ of entitlement to injunctive relief, a court must independently assess whether violations are imminent.”) (citations omitted). The FTC Has Failed To Meet Its Burden Of Proving That Injunctive 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 -15- QB408757.7 Case -cv-01578-JJT Document 74 Filed 09/10/15 Page 16 of 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Relief Is Warranted Against Vemma. [Hearing Tr., at 11.] But this argument is simply not supported by any evidence. [See Memorandum, at 17-21.] These statements, however, are nothing more than sales pitches, or “puffery”, when viewed in tandem with Vemma’s disclaimers and income disclosure statements. Despite admitting that Vemma’s earnings disclosures “reveal that many Affiliates have not earned substantial sums”, the FTC argues that Vemma’s 20 Disclosure Statements are false and misleading.
Vemma reserves fully their right to supplement the evidence and arguments presented by the Vemma resulting from this discovery. 2009) (“In determining whether a statement is puffery, the context matters”) (emphasis added). 2008) (“The appointment of a receiver is an equitable remedy of rather drastic nature available at the discretion of the court....”) Because it is an extraordinary remedy, a request for appointment of a receiver should not be granted without careful consideration of the federal receivership factors.
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Case -cv-01578-JJT Document 74 Filed 09/10/15 Page 1 of 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Quarles & Brady LLP Firm State Bar No. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Federal Trade Commission, Plaintiff, vs. CV-15-01578-PHX-JJT RESPONSE AND OBJECTION TO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER WITH ASSET FREEZE, APPOINTMENT OF A RECEIVER, AND OTHER EQUITABLE RELIEF, AND AN ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE Vemma Nutrition Company and Vemma International Holdings, Inc.
-3- QB408757.7 Case -cv-01578-JJT Document 74 Filed 09/10/15 Page 4 of 47 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The temporary receiver summarily that Vemma’s compliance department monitors Affiliates to ensure compliance with the company’s terms and conditions. Here, the effect of Vemma’s “sales pitch” statements is negated by Vemma’s disclaimers and income disclosures, which make abundantly clear the income Affiliates can expect.
Without an understanding of Vemma’s financials and operations, the temporary receiver ceased the entire business, including global operations, and laid off over 100 employees, causing significant harm to Vemma and its creditor constituencies, Affiliates and customers, and international operations. As the FTC concedes, Vemma included “results not typical” disclaimers in many (if not most) of their income representations.