The opinion of the court was delivered by: Hon. James V. SelnaUnited States District Judge
PRELIMINARY INJUNCTION AGAINST DEFENDANTS MILE HIGH ENTERPRISE INC. AND BRYAN MATTHEW LOVING WITH ASSET FREEZE AND OTHER EQUITABLE RELIEF
On August 3, 2010, the Federal Trade Commission ("FTC"), pursuant to Sections 13(b) and 19 of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. §§ 53(b) and 57b, filed a Complaint for a permanent injunction and other equitable relief against Health Care One LLC ("Health Care One"), Americans4Healthcare Inc. ("Americans4Healthcare"), Elite Business Solutions, Inc. ("Elite Business Solutions"), Michael Jay Ellman, and Robert Daniel Freeman (also known as Dan Freeman).
On August 3, 2010, the Court entered a temporary restraining order against all defendants with temporary injunctive relief, including an asset freeze, and appointed Thomas W. McNamara as temporary receiver over the corporate defendants.
On August 23, 2010, the Court entered a stipulated preliminary injunction against Elite Business Solutions and Robert Daniel Freeman. The August 23, 2010 preliminary injunction appointed Thomas W. McNamara as Permanent Receiver over Elite Business Solutions and related corporate entities, including Mile High Enterprise Inc. ("Mile High Enterprise"). On September 1, 2010, after a hearing, the Court entered a preliminary injunction against Health Care One, Americans4Healthcare, and Michael Jay Ellman, which continued the injunctive relief and asset freeze initially imposed by the temporary restraining order, and appointed Thomas W. McNamara as permanent receiver over Health Care One, Americans4Healthcare, and related entities.
On April 21, 2011, the FTC filed an amended Complaint naming Mile High Enterprise and Bryan Matthew Loving ("Loving") as Defendants in this action. The FTC, Mile High Enterprise, and Loving have stipulated to the entry of a preliminary injunction against Mile High Enterprise and Loving with asset freeze and other equitable relief as set forth in the Stipulation.
Plaintiff FTC and Defendants Mile High Enterprise and Loving ("Defendants"), having stipulated to entry of a preliminary injunction, and for good cause shown, the Court hereby enters this Preliminary Injunction With Asset Freeze and Other Equitable Relief ("Order"):
1. This Court has jurisdiction over the subject matter of this case and personal jurisdiction over Defendants Mile High Enterprise Inc. and Bryan Matthew Loving.
2. Venue lies properly with this Court.
3. For purposes of this Order, the Complaint states a claim upon which relief may be granted.
4. There is good cause to believe that Defendants have engaged in and are likely to engage in acts that violate Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and the FTC's Telemarketing Sales Rule, 16 C.F.R. Part 310, and that the Commission is likely to prevail on the merits of this action.
5. There is good cause to believe that immediate and irreparable harm will result from Defendants' ongoing violations of the FTC Act unless Defendants are restrained and enjoined by Order of this Court.
6. By order dated August 23, 2010, the Court appointed Thomas W. McNamara as permanent receiver over Mile High Enterprise and any successors, assigns, affiliates, and subsidiaries of Mile High Enterprise that conduct any business related to Defendants' "national healthcare discount program" and which the Permanent Receiver has reason to believe are owned or controlled in whole or in part by any of the Defendants. Defendants consent to and do not contest this appointment.
7. There is good cause to believe that immediate and irreparable damage to the Court's ability to grant effective final relief for consumers -- including refunds, rescission and restitution, disgorgement or other equitable monetary relief -- will occur from the sale, transfer, or other disposition or concealment by Defendants of assets or records unless Defendants are immediately restrained and enjoined by Order of this Court.
8. Considering Plaintiff's likelihood of ultimate success and weighing the equities, this Preliminary Injunction with an asset freeze and other equitable relief is in the public interest.
9. No security is required of any agency of the United States for issuance of a restraining order. Fed. R. Civ. P. 65(c).
10. Nothing herein shall be deemed an admission of wrongdoing, an admission of any allegation in the complaint in this action, or a waiver of any defense or privilege, by Defendants.
11. Defendant Loving expressly reserves the right to apply to the Court for an order modify this preliminary injunction to permit him to pay reasonable and necessary and ordinary living expenses and/or attorneys' fees and costs from frozen funds, in addition to any monetary releases agreed to by the FTC pursuant to Section III.A. of this Order.
For purposes of this Order, the following definitions shall apply:
1. "Plaintiff" means the Federal Trade Commission.
2. "Defendants" refers to Defendants Mile High Enterprise Inc., and Bryan Matthew Loving, and each of them, by whatever names each might be known by, as well as their successors and assigns, whether acting directly or through any corporation, subsidiary, division, or other device, including, but not limited to, fictitious business names.
3. "Corporate Defendant" refers to Defendant Mile High Enterprise Inc.
4. "Individual Defendant" refers to Defendant Bryan Matthew Loving.
5. "Receivership Defendants" refers to Elite Business Solutions, Inc., also d/b/a "EasyLife Healthcare," "Elite Healthcare" and "Republic Healthcare," Mile High Enterprise Inc., Freeman Consulting, and Lighthouse Business Solutions LLC, as well as any successors, assigns, affiliates, and subsidiaries that conduct any business related to the Defendants' "national healthcare discount program" and which the Permanent Receiver has reason to believe are owned or controlled in whole or in part by any of the Defendants.
6. "Assisting others" means knowingly providing any of the following goods or services to another person or entity:
a. performing customer service functions, including, but not limited to, receiving or responding to consumer complaints; or
b. formulating or providing, or arranging for the formulation or provision of, any telephone sales script or any other marketing material; or
c. providing names of, or assisting in the generation of, potential customers; or
d. performing marketing services of any kind.
7. "Assets" means any legal or equitable interest in, right to, or claim to, any real or personal property, including, without limitation, chattels, goods, instruments, equipment, fixtures, general intangibles, leaseholds, mail or other deliveries, inventory, checks, notes, accounts, credits, contracts, receivables, shares of stock, and all cash, wherever located.
8. The term "document" is equal in scope and synonymous in meaning to the terms "document" and "electronically stored information," as described and used in Federal Rule of Civil Procedure 34(a), and includes writings, drawings, graphs, charts, photographs, audio and video recordings, computer records, and any other data compilations from which information can be obtained. A draft or non-identical copy is a separate document within the meaning of the term.
9. "Material fact" means any fact that is likely to affect a person's choice of, or conduct regarding, goods or services.
10. "Person" means a natural person, organization, or other legal entity, including a corporation, partnership, proprietorship, association, cooperative, or any other group or combination acting as an entity.
I. PROHIBITED REPRESENTATIONS
IT IS THEREFORE ORDERED that Defendants and their successors, assigns, officers, agents, servants, employees, and attorneys, and those persons or entities in active concert or participation with any of them who receive actual notice of this Order by personal service or otherwise, whether acting directly or through any corporation, subsidiary, division, or other device, in connection with the advertising, marketing, promotion, offering for sale or sale of any good or service, are hereby restrained and enjoined from falsely representing, or from assisting others who are falsely representing, any of the following:
A. The program that Defendants are selling or marketing is health insurance;
B. The program that Defendants are selling or marketing is affiliated with or endorsed or sponsored by the federal government;
C. Enrollment in the program that Defendants are selling or marketing will result in substantial healthcare savings to the consumers;
D. Consumers who enroll in the program that Defendants are selling or marketing will be able to obtain program benefits from the consumers' current healthcare providers and from other healthcare providers in the consumers' local communities;
E. Defendants will provide a full refund, subject to no or only a nominal processing fee to consumers who enroll in the program that Defendants are selling or marketing, if the consumer submits a cancellation request before the thirty-day trial period expires; and
F. Any other fact material to a consumer's decision to purchase any good or service from Defendants.
II. PROHIBITION AGAINST VIOLATING THE TELEMARKETING SALES RULE
IT IS FURTHER ORDERED that Defendants and their successors, assigns, officers, agents, servants, employees, and attorneys, and those persons or entities in active concert or participation with any of them who receive actual notice of this Order by personal service or otherwise, whether acting directly or through any corporation, subsidiary, division, or other device, in connection with the telemarketing of any good or service, are hereby restrained and ...