This document is a memorandum and order from a federal district court judge denying motions to dismiss an amended complaint filed by the Federal Trade Commission. The FTC's amended complaint alleges that various defendants, including new defendants Guaranteed Trust Life Insurance Co. and some of its subsidiaries and executives, engaged in a common scheme to deceptively market medical discount plans through false claims that they were equivalent to major medical insurance. The court found that the amended complaint contained sufficient factual allegations against all defendants to survive a motion to dismiss.
This document is a Supreme Court case regarding whether an employer can deny COBRA continuation health coverage to a beneficiary who already has coverage under another group health plan. The key issue is the interpretation of a COBRA provision that allows employers to cancel coverage if a beneficiary "first becomes" covered under another plan after electing COBRA. The Court unanimously held that employers cannot deny COBRA coverage to beneficiaries who already had other coverage when electing, as the provision refers to obtaining new coverage after election.
The document discusses the history and provisions of the Employee Retirement Income Security Act (ERISA) of 1974. Key points include:
- ERISA was enacted to protect employee benefits plans and set minimum standards for private pension plans, health insurance, and other benefits.
- ERISA includes a broad preemption of state laws related to employee benefits plans to provide consistent regulation nationwide. However, it preserves states' ability to regulate insurance.
- A recent Supreme Court case reaffirmed ERISA's preemption of state laws regarding plan reporting and record keeping to prevent inconsistent state regulations from burdening plans.
This order addresses several motions for summary judgment in a case challenging various Hawaii campaign finance laws. It permanently enjoins the enforcement of contribution limits to independent expenditure committees. It upholds disclosure requirements for noncandidate committees and advertisements. It also upholds a ban on contributions from government contractors to candidates. The order finds the plaintiffs are likely to succeed in challenging contribution limits to independent groups, but is unlikely to succeed in challenging the disclosure laws or ban on contractor donations based on precedent.
The Food Fight Is Over Whole Foods And Ftc Settle Dispute Over Merger Of Orga...Heather Cooper
The FTC and Whole Foods settled a dispute over Whole Foods' 2007 acquisition of Wild Oats Market. Under the settlement, Whole Foods will sell 32 stores to restore competition eliminated by the merger. The FTC argued the merger violated antitrust laws by reducing competition in organic and natural foods markets. As part of the settlement, Whole Foods must also divest Wild Oats' intellectual property and brand to maintain competition. The settlement will take effect after a public comment period and restores competition concerns addressed by the FTC lawsuit challenging the original merger.
This document summarizes a lawsuit brought by relators against Johnson & Johnson alleging violations of the False Claims Act. The relators claim that J&J provided kickbacks to Omnicare, the largest nursing home pharmacy provider, to induce its pharmacists to recommend J&J drugs over cheaper alternatives. The kickbacks were disguised as rebates and grants. The government and several states have intervened in the lawsuit and filed their own complaints making similar allegations. J&J moves to dismiss, arguing the complaints do not properly allege violations of the False Claims Act.
This document provides an overview of big data and its potential impact on the travel industry. It discusses how big data involves not just large volumes of data but also a variety of unstructured data sources and fast-moving data streams. While travel companies have long had access to large amounts of structured transaction data, big data represents an opportunity to also leverage unstructured data from sources like social media and call centers. The document outlines some of the new technologies that have emerged to manage and analyze big data, as well as challenges the travel industry faces in adopting big data approaches. Early adopters in the online travel sector are highlighted as pursuing big data initiatives to improve processes like revenue management, travel distribution, and enhancing the customer experience.
This document is a Supreme Court case regarding whether an employer can deny COBRA continuation health coverage to a beneficiary who already has coverage under another group health plan. The key issue is the interpretation of a COBRA provision that allows employers to cancel coverage if a beneficiary "first becomes" covered under another plan after electing COBRA. The Court unanimously held that employers cannot deny COBRA coverage to beneficiaries who already had other coverage when electing, as the provision refers to obtaining new coverage after election.
The document discusses the history and provisions of the Employee Retirement Income Security Act (ERISA) of 1974. Key points include:
- ERISA was enacted to protect employee benefits plans and set minimum standards for private pension plans, health insurance, and other benefits.
- ERISA includes a broad preemption of state laws related to employee benefits plans to provide consistent regulation nationwide. However, it preserves states' ability to regulate insurance.
- A recent Supreme Court case reaffirmed ERISA's preemption of state laws regarding plan reporting and record keeping to prevent inconsistent state regulations from burdening plans.
This order addresses several motions for summary judgment in a case challenging various Hawaii campaign finance laws. It permanently enjoins the enforcement of contribution limits to independent expenditure committees. It upholds disclosure requirements for noncandidate committees and advertisements. It also upholds a ban on contributions from government contractors to candidates. The order finds the plaintiffs are likely to succeed in challenging contribution limits to independent groups, but is unlikely to succeed in challenging the disclosure laws or ban on contractor donations based on precedent.
The Food Fight Is Over Whole Foods And Ftc Settle Dispute Over Merger Of Orga...Heather Cooper
The FTC and Whole Foods settled a dispute over Whole Foods' 2007 acquisition of Wild Oats Market. Under the settlement, Whole Foods will sell 32 stores to restore competition eliminated by the merger. The FTC argued the merger violated antitrust laws by reducing competition in organic and natural foods markets. As part of the settlement, Whole Foods must also divest Wild Oats' intellectual property and brand to maintain competition. The settlement will take effect after a public comment period and restores competition concerns addressed by the FTC lawsuit challenging the original merger.
This document summarizes a lawsuit brought by relators against Johnson & Johnson alleging violations of the False Claims Act. The relators claim that J&J provided kickbacks to Omnicare, the largest nursing home pharmacy provider, to induce its pharmacists to recommend J&J drugs over cheaper alternatives. The kickbacks were disguised as rebates and grants. The government and several states have intervened in the lawsuit and filed their own complaints making similar allegations. J&J moves to dismiss, arguing the complaints do not properly allege violations of the False Claims Act.
This document provides an overview of big data and its potential impact on the travel industry. It discusses how big data involves not just large volumes of data but also a variety of unstructured data sources and fast-moving data streams. While travel companies have long had access to large amounts of structured transaction data, big data represents an opportunity to also leverage unstructured data from sources like social media and call centers. The document outlines some of the new technologies that have emerged to manage and analyze big data, as well as challenges the travel industry faces in adopting big data approaches. Early adopters in the online travel sector are highlighted as pursuing big data initiatives to improve processes like revenue management, travel distribution, and enhancing the customer experience.
This order declares a Georgia statute capping noneconomic damages in medical malpractice cases unconstitutional. The order discusses the facts of the case, in which a jury awarded damages to the plaintiffs that exceeded the statutory cap. The court considered motions to strike affidavits submitted by the plaintiffs and denied the motions. In a lengthy analysis, the court found that the statutory cap violates the right to a jury trial guaranteed by the Georgia constitution. The court examined the history and scope of the right to a jury trial and determined that the cap improperly infringes on this right. Therefore, the court declared the statutory cap unconstitutional.
This document is a complaint filed by the United States against Johnson & Johnson and its subsidiaries alleging they violated the False Claims Act and anti-kickback statute. It claims that from 1999 to 2004, J&J paid tens of millions of dollars in kickbacks to Omnicare, the largest long-term care pharmacy, to induce it to purchase and recommend J&J drugs, especially Risperdal. As a result of these kickbacks, Omnicare's purchases of J&J drugs greatly increased and it submitted false claims to Medicaid for reimbursement. The complaint seeks damages and penalties for J&J's actions, which undermined the integrity of Medicaid.
Equity Aids the Vigilant: The Supreme Court’s Montanile Decision And Its Less...Paul Hastings
After the U.S. Supreme Court’s opinion in Board of Trustees of the National Elevator Industry Health Benefit Plan holding that ERISA prohibits suits by benefits plans where the beneficiary spent the settlement money on nontraceable items, attorneys from Paul Hastings LLP suggest that plans enhance their monitoring efforts, review the adequacy of their subrogation clauses and act promptly when seeking reimbursement from plan participants.
This document summarizes a court case filed by the Coalition for Parity against the Secretaries of Health and Human Services, Labor, and Treasury regarding regulations issued to implement the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008. The Coalition claims the regulations violated the notice and comment requirements of the Administrative Procedure Act. The court document provides background on the notice and comment procedures under the APA, an overview of the Mental Health Parity Act and the new regulations issued by the Departments. It also describes the regulatory process undertaken by the Departments to implement the new law through an interim final rule.
This document summarizes a court case filed by the Coalition for Parity against the Secretaries of Health and Human Services, Labor, and Treasury regarding regulations issued to implement the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008. The Coalition claims the regulations violated the notice and comment requirements of the Administrative Procedure Act. The court document provides background on the notice and comment procedures under the APA, an overview of the Mental Health Parity Act and the new regulations issued by the Departments. It also describes the regulatory process undertaken by the Departments to implement the new law through an interim final rule.
This document is a court opinion dismissing an ERISA claim brought by an employee health plan and employer against a hospital and medical college. The plan sought to recover alleged overpayments for medical treatment provided to a plan participant's child. The court found that the plan failed to establish an equitable lien against the defendants as required for relief under ERISA section 502(a)(3). The court allowed supplemental briefing on whether the plan has a viable federal common law unjust enrichment claim to establish jurisdiction.
This document discusses various approaches to tort reform that can help limit healthcare costs. It outlines how capping damages paid to plaintiffs has been found constitutional if optional withdrawal from the program or increased benefits are provided. Periodic payment plans that space out damages over time can also be constitutional. Tort reform can promote efficiency by encouraging physician retention and reducing frivolous malpractice claims through medical review panels. The document argues tort reform is overdue in Kentucky to allow the healthcare industry to serve communities more efficiently and at a higher standard.
A Summary of Managed Pharmacy Care v. SebeliusJessica Woods
1) Four cases were consolidated involving challenges to California's plans to reduce Medicaid reimbursement rates. The Secretary of Health and Human Services approved the plans, prompting a lawsuit claiming the plans violated federal law.
2) The district court granted an injunction against implementing the rates, finding the plaintiffs were likely to succeed on the merits of their claim that the plans violated federal law. The Secretary appealed.
3) The Ninth Circuit determined that the Secretary's approval of the plans was entitled to judicial deference under the Administrative Procedure Act. The court also found that the Secretary's decision that the plans complied with federal law was not arbitrary or capricious. The district court had failed to properly defer to the Secretary.
The document discusses potential litigation risks insurers may face related to implementation of the Affordable Care Act (ACA). It identifies two key expectations that may drive litigation if unfulfilled: 1) that everyone will have guaranteed, robust health insurance coverage; and 2) that costs associated with health insurance will stabilize or decrease over time. The document outlines four specific risk areas where insurers could face legal challenges, including challenges to benefit determinations and scope of coverage, issues related to the establishment of insurance exchanges, disputes over medical loss ratio calculations and rebates, and challenges to insurers' risk adjustment calculations. It concludes that insurers should plan ahead for potential litigation challenges as key ACA reforms are implemented.
The document summarizes recent legal developments from Supreme Court decisions and appellate court rulings that have implications for healthcare providers. Key points include: the Supreme Court ruling in North Carolina Board of Dental Examiners v. FTC that state licensing boards composed primarily of market participants do not enjoy automatic antitrust immunity; developments in case law around the False Claims Act and what constitutes a "claim"; and implications of cases related to the Anti-Kickback Statute and Stark Law on compensation arrangements between physicians and healthcare entities.
The document describes the design of prediction models to analyze the effects of tort reforms on malpractice claims in Texas. Key points:
1) Regression models were developed using variables like year, population, number of physicians/lawyers, GDP, and CPI to predict the frequency and severity of malpractice claims.
2) Q-Q plots showed the variables were normally distributed, allowing use of statistical tests like t-tests and chi-square tests.
3) The best regression models for predicting frequency and severity had adjusted R-squared values of 0.503 and 0.423, respectively, and all coefficients were statistically significant.
4) The models will be used to simulate claim losses and develop a
This document is an objection filed by the United States Trustee to motions filed by Petitioning Creditors and Alleged Debtors to seal certain documents filed with the court. The U.S. Trustee does not oppose sealing documents pending a ruling on whether the bankruptcy cases will proceed, but argues that any sealing should end if the court finds cause to open bankruptcy cases, as the information would then become public. The U.S. Trustee asserts that bankruptcy law favors public disclosure of information relevant to creditors and parties in interest.
Pleading Healthcare Fraud and Abuse Rule 9b 12 b 6 Merritt Rose 05 13Martin Merritt
This document summarizes the pleading standards for False Claims Act cases regarding healthcare fraud. It notes that from 2009-2012, the Department of Justice recovered over $9.5 billion in healthcare fraud cases. However, very specific pleading standards under Rules 9(b) and 12(b)(6) must be met or the case is subject to dismissal. Plaintiffs must plead facts regarding "who, what, when, where, and how" the fraud occurred to satisfy Rule 9(b)'s heightened pleading standard. They must also show a plausible claim under Rule 12(b)(6) by pleading sufficient factual matter to state a claim for relief.
The document summarizes obstacles to enforcing requirements of the Medicaid statute. It discusses how the Supreme Court initially permitted Medicaid enforcement lawsuits in Wilder v. Virginia Hospital Association but has since curtailed this pathway. While §1983 suits could previously challenge state reimbursement rates, Gonzaga v. Doe added new tests making it difficult to use this statute for enforcement. The document outlines failed attempts to use the Supremacy Clause as an alternative enforcement mechanism. As a result, the primary option left for addressing violations is complaining to CMS, though it has limited enforcement powers.
Full text of the Supreme Court's 6-3 Obamacare rulingDaniel Roth
Chief Justice John Roberts: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.. IIf at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.”
Scalia: "“We should start calling this law ‘SCOTUScare"
This document is a Supreme Court syllabus summarizing the case of King v. Burwell, Secretary of Health and Human Services. It provides background on the failed history of health insurance reform efforts in the 1990s and 2000s, and how provisions of the Affordable Care Act were based on reforms in Massachusetts that successfully reduced the uninsured rate. Specifically, it discusses the key issues in the case around whether the ACA's tax credits are available only in state-run exchanges or both state and federal exchanges. The Court ultimately ruled the tax credits are available in both types of exchanges based on reading the full context and structure of the law.
J Robert Hunter Antitrust Senate Mc Carran Repeal Health Insurance Testimo...Wayne Rohde
This document is the testimony of J. Robert Hunter, Director of Insurance for the Consumer Federation of America, before the Senate Judiciary Committee regarding prohibiting anticompetitive conduct in the health insurance industry. Hunter argues that the McCarran-Ferguson Act's antitrust exemption for insurers should be repealed to protect consumers from anticompetitive practices. He provides examples of insurers colluding to artificially lower payments and use unfair policy provisions, and argues that repealing the exemption would subject insurers to the same antitrust laws as other industries.
The document summarizes recent developments in US healthcare policy. It discusses the confirmation of Tom Price as HHS Secretary, the blocking of the Anthem-Cigna merger by a federal court, and potential near-term reforms to the ACA to stabilize insurance exchanges by tightening rules around pricing, grace periods, enrollment periods, and eligibility verification. The potential reforms aim to address insurer complaints about excessive permissiveness in the current system. The document concludes by noting the complexity of healthcare issues and hope that leaders can find new solutions to ongoing problems of cost and access.
This document summarizes legal strategies for defendants when plaintiffs who are Kaiser members seek damages for medical expenses. It notes that plaintiffs may not be able to prove any damages because Kaiser does not operate on a traditional fee-for-service basis. It also argues that Kaiser statements of charges and courtesy bills are inadmissible hearsay and cannot prove the amount incurred, as Kaiser witnesses are unable to qualify the documents. The summary concludes that plaintiffs may only be able to prove $0 damages or the lesser capitated rate paid by Kaiser.
This document discusses medical negligence and the legal duties and liabilities of medical practitioners under Indian law. It summarizes that the Supreme Court defined the relationship between patients and doctors as contractual under the Consumer Protection Act. It outlines the duties of care owed by doctors, what constitutes negligence, and how negligence claims can be brought before consumer forums. It also discusses issues like informed consent, vicarious liability, and the potential for criminal charges in cases of gross medical negligence.
SENTENCIA CONDENATORIA A RAFAEL CORREA COHECHO 07 septiembre 2020 Caso SOBORN...Anibal Carrera
CASO SOBORNOS
"26/04/2020 SENTENCIA CONDENATORIA
22:38:00
Quito, domingo 26 de abril del 2020, las 22h38, VISTOS: La doctora Daniella Camacho Herold, Jueza Nacional de Garantías
Penales, con fecha 3 de enero de 2020 , resolvió llamar a juicio a los ciudadanos: RAFAEL VICENTE CORREA DELGADO ,
JORGE DAVID GLAS ESPINEL , ALEXIS JAVIER MERA GILER , MARÍA DE LOS ÁNGELES DUARTE PESANTES , WALTER
HIPÓLITO SOLÍS VALAREZO , ROLDÁN VINICIO ALVARADO ESPINEL , VIVIANA PATRICIA BONILLA SALCEDO ,
CHRISTIAN HUMBERTO VITERI LÓPEZ , PAMELA MARÍA MARTÍNEZ LOAYZA, LAURA GUADALUPE TERÁN BETANCOURT,
ALBERTO JOSÉ HIDALGO ZAVALA, VÍCTOR MANUEL FONTANA ZAMORA, RAMIRO LEONARDO GALARZA ANDRADE,
EDGAR ROMÁN SALAS LEÓN, PEDRO VICENTE VERDUGA CEVALLOS, BOLÍVAR NAPOLEÓN SÁNCHEZ RIVADENEIRA,
PHILLIPS COOPER WILLIAM WALLACE, RAFAEL LEONARDO CÓRDOVA CARVAJAL, TEODORO FERNANDO CALLE
ENRÍQUEZ, MATEO CHOI o CHOI KIM DU YEON, a quienes Fiscalía los acusó en calidad de autores; y, a YAMIL FARAH
MASSUH JOLLEY, a quien Fiscalía lo acusó como cómplice, del delito de cohecho tipificado y sancionado en el artículo 286 del
Código Penal (CP) –vigente a la época de los hechos; y ahora en el artículo 280, incisos 2º y 4º del Código Orgánico Integral
Penal (COIP)-"
9. RESUMEN Y TEORIA DEL CASO PECULADO COHECHO ENR ILICITO FALSO TESTIMONIO ...Anibal Carrera
Resumen Cronologico de la
Corrupción, Colusión IESS
RECAPT SOLNET, Presuntos Sobornos, Peculado,…
Resumen Cronológico I.P No. 170101818022804 y 170101820011698
Contrato
Call Center IESS RECAPT
TEORIA DEL CASO
This order declares a Georgia statute capping noneconomic damages in medical malpractice cases unconstitutional. The order discusses the facts of the case, in which a jury awarded damages to the plaintiffs that exceeded the statutory cap. The court considered motions to strike affidavits submitted by the plaintiffs and denied the motions. In a lengthy analysis, the court found that the statutory cap violates the right to a jury trial guaranteed by the Georgia constitution. The court examined the history and scope of the right to a jury trial and determined that the cap improperly infringes on this right. Therefore, the court declared the statutory cap unconstitutional.
This document is a complaint filed by the United States against Johnson & Johnson and its subsidiaries alleging they violated the False Claims Act and anti-kickback statute. It claims that from 1999 to 2004, J&J paid tens of millions of dollars in kickbacks to Omnicare, the largest long-term care pharmacy, to induce it to purchase and recommend J&J drugs, especially Risperdal. As a result of these kickbacks, Omnicare's purchases of J&J drugs greatly increased and it submitted false claims to Medicaid for reimbursement. The complaint seeks damages and penalties for J&J's actions, which undermined the integrity of Medicaid.
Equity Aids the Vigilant: The Supreme Court’s Montanile Decision And Its Less...Paul Hastings
After the U.S. Supreme Court’s opinion in Board of Trustees of the National Elevator Industry Health Benefit Plan holding that ERISA prohibits suits by benefits plans where the beneficiary spent the settlement money on nontraceable items, attorneys from Paul Hastings LLP suggest that plans enhance their monitoring efforts, review the adequacy of their subrogation clauses and act promptly when seeking reimbursement from plan participants.
This document summarizes a court case filed by the Coalition for Parity against the Secretaries of Health and Human Services, Labor, and Treasury regarding regulations issued to implement the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008. The Coalition claims the regulations violated the notice and comment requirements of the Administrative Procedure Act. The court document provides background on the notice and comment procedures under the APA, an overview of the Mental Health Parity Act and the new regulations issued by the Departments. It also describes the regulatory process undertaken by the Departments to implement the new law through an interim final rule.
This document summarizes a court case filed by the Coalition for Parity against the Secretaries of Health and Human Services, Labor, and Treasury regarding regulations issued to implement the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008. The Coalition claims the regulations violated the notice and comment requirements of the Administrative Procedure Act. The court document provides background on the notice and comment procedures under the APA, an overview of the Mental Health Parity Act and the new regulations issued by the Departments. It also describes the regulatory process undertaken by the Departments to implement the new law through an interim final rule.
This document is a court opinion dismissing an ERISA claim brought by an employee health plan and employer against a hospital and medical college. The plan sought to recover alleged overpayments for medical treatment provided to a plan participant's child. The court found that the plan failed to establish an equitable lien against the defendants as required for relief under ERISA section 502(a)(3). The court allowed supplemental briefing on whether the plan has a viable federal common law unjust enrichment claim to establish jurisdiction.
This document discusses various approaches to tort reform that can help limit healthcare costs. It outlines how capping damages paid to plaintiffs has been found constitutional if optional withdrawal from the program or increased benefits are provided. Periodic payment plans that space out damages over time can also be constitutional. Tort reform can promote efficiency by encouraging physician retention and reducing frivolous malpractice claims through medical review panels. The document argues tort reform is overdue in Kentucky to allow the healthcare industry to serve communities more efficiently and at a higher standard.
A Summary of Managed Pharmacy Care v. SebeliusJessica Woods
1) Four cases were consolidated involving challenges to California's plans to reduce Medicaid reimbursement rates. The Secretary of Health and Human Services approved the plans, prompting a lawsuit claiming the plans violated federal law.
2) The district court granted an injunction against implementing the rates, finding the plaintiffs were likely to succeed on the merits of their claim that the plans violated federal law. The Secretary appealed.
3) The Ninth Circuit determined that the Secretary's approval of the plans was entitled to judicial deference under the Administrative Procedure Act. The court also found that the Secretary's decision that the plans complied with federal law was not arbitrary or capricious. The district court had failed to properly defer to the Secretary.
The document discusses potential litigation risks insurers may face related to implementation of the Affordable Care Act (ACA). It identifies two key expectations that may drive litigation if unfulfilled: 1) that everyone will have guaranteed, robust health insurance coverage; and 2) that costs associated with health insurance will stabilize or decrease over time. The document outlines four specific risk areas where insurers could face legal challenges, including challenges to benefit determinations and scope of coverage, issues related to the establishment of insurance exchanges, disputes over medical loss ratio calculations and rebates, and challenges to insurers' risk adjustment calculations. It concludes that insurers should plan ahead for potential litigation challenges as key ACA reforms are implemented.
The document summarizes recent legal developments from Supreme Court decisions and appellate court rulings that have implications for healthcare providers. Key points include: the Supreme Court ruling in North Carolina Board of Dental Examiners v. FTC that state licensing boards composed primarily of market participants do not enjoy automatic antitrust immunity; developments in case law around the False Claims Act and what constitutes a "claim"; and implications of cases related to the Anti-Kickback Statute and Stark Law on compensation arrangements between physicians and healthcare entities.
The document describes the design of prediction models to analyze the effects of tort reforms on malpractice claims in Texas. Key points:
1) Regression models were developed using variables like year, population, number of physicians/lawyers, GDP, and CPI to predict the frequency and severity of malpractice claims.
2) Q-Q plots showed the variables were normally distributed, allowing use of statistical tests like t-tests and chi-square tests.
3) The best regression models for predicting frequency and severity had adjusted R-squared values of 0.503 and 0.423, respectively, and all coefficients were statistically significant.
4) The models will be used to simulate claim losses and develop a
This document is an objection filed by the United States Trustee to motions filed by Petitioning Creditors and Alleged Debtors to seal certain documents filed with the court. The U.S. Trustee does not oppose sealing documents pending a ruling on whether the bankruptcy cases will proceed, but argues that any sealing should end if the court finds cause to open bankruptcy cases, as the information would then become public. The U.S. Trustee asserts that bankruptcy law favors public disclosure of information relevant to creditors and parties in interest.
Pleading Healthcare Fraud and Abuse Rule 9b 12 b 6 Merritt Rose 05 13Martin Merritt
This document summarizes the pleading standards for False Claims Act cases regarding healthcare fraud. It notes that from 2009-2012, the Department of Justice recovered over $9.5 billion in healthcare fraud cases. However, very specific pleading standards under Rules 9(b) and 12(b)(6) must be met or the case is subject to dismissal. Plaintiffs must plead facts regarding "who, what, when, where, and how" the fraud occurred to satisfy Rule 9(b)'s heightened pleading standard. They must also show a plausible claim under Rule 12(b)(6) by pleading sufficient factual matter to state a claim for relief.
The document summarizes obstacles to enforcing requirements of the Medicaid statute. It discusses how the Supreme Court initially permitted Medicaid enforcement lawsuits in Wilder v. Virginia Hospital Association but has since curtailed this pathway. While §1983 suits could previously challenge state reimbursement rates, Gonzaga v. Doe added new tests making it difficult to use this statute for enforcement. The document outlines failed attempts to use the Supremacy Clause as an alternative enforcement mechanism. As a result, the primary option left for addressing violations is complaining to CMS, though it has limited enforcement powers.
Full text of the Supreme Court's 6-3 Obamacare rulingDaniel Roth
Chief Justice John Roberts: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.. IIf at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.”
Scalia: "“We should start calling this law ‘SCOTUScare"
This document is a Supreme Court syllabus summarizing the case of King v. Burwell, Secretary of Health and Human Services. It provides background on the failed history of health insurance reform efforts in the 1990s and 2000s, and how provisions of the Affordable Care Act were based on reforms in Massachusetts that successfully reduced the uninsured rate. Specifically, it discusses the key issues in the case around whether the ACA's tax credits are available only in state-run exchanges or both state and federal exchanges. The Court ultimately ruled the tax credits are available in both types of exchanges based on reading the full context and structure of the law.
J Robert Hunter Antitrust Senate Mc Carran Repeal Health Insurance Testimo...Wayne Rohde
This document is the testimony of J. Robert Hunter, Director of Insurance for the Consumer Federation of America, before the Senate Judiciary Committee regarding prohibiting anticompetitive conduct in the health insurance industry. Hunter argues that the McCarran-Ferguson Act's antitrust exemption for insurers should be repealed to protect consumers from anticompetitive practices. He provides examples of insurers colluding to artificially lower payments and use unfair policy provisions, and argues that repealing the exemption would subject insurers to the same antitrust laws as other industries.
The document summarizes recent developments in US healthcare policy. It discusses the confirmation of Tom Price as HHS Secretary, the blocking of the Anthem-Cigna merger by a federal court, and potential near-term reforms to the ACA to stabilize insurance exchanges by tightening rules around pricing, grace periods, enrollment periods, and eligibility verification. The potential reforms aim to address insurer complaints about excessive permissiveness in the current system. The document concludes by noting the complexity of healthcare issues and hope that leaders can find new solutions to ongoing problems of cost and access.
This document summarizes legal strategies for defendants when plaintiffs who are Kaiser members seek damages for medical expenses. It notes that plaintiffs may not be able to prove any damages because Kaiser does not operate on a traditional fee-for-service basis. It also argues that Kaiser statements of charges and courtesy bills are inadmissible hearsay and cannot prove the amount incurred, as Kaiser witnesses are unable to qualify the documents. The summary concludes that plaintiffs may only be able to prove $0 damages or the lesser capitated rate paid by Kaiser.
This document discusses medical negligence and the legal duties and liabilities of medical practitioners under Indian law. It summarizes that the Supreme Court defined the relationship between patients and doctors as contractual under the Consumer Protection Act. It outlines the duties of care owed by doctors, what constitutes negligence, and how negligence claims can be brought before consumer forums. It also discusses issues like informed consent, vicarious liability, and the potential for criminal charges in cases of gross medical negligence.
SENTENCIA CONDENATORIA A RAFAEL CORREA COHECHO 07 septiembre 2020 Caso SOBORN...Anibal Carrera
CASO SOBORNOS
"26/04/2020 SENTENCIA CONDENATORIA
22:38:00
Quito, domingo 26 de abril del 2020, las 22h38, VISTOS: La doctora Daniella Camacho Herold, Jueza Nacional de Garantías
Penales, con fecha 3 de enero de 2020 , resolvió llamar a juicio a los ciudadanos: RAFAEL VICENTE CORREA DELGADO ,
JORGE DAVID GLAS ESPINEL , ALEXIS JAVIER MERA GILER , MARÍA DE LOS ÁNGELES DUARTE PESANTES , WALTER
HIPÓLITO SOLÍS VALAREZO , ROLDÁN VINICIO ALVARADO ESPINEL , VIVIANA PATRICIA BONILLA SALCEDO ,
CHRISTIAN HUMBERTO VITERI LÓPEZ , PAMELA MARÍA MARTÍNEZ LOAYZA, LAURA GUADALUPE TERÁN BETANCOURT,
ALBERTO JOSÉ HIDALGO ZAVALA, VÍCTOR MANUEL FONTANA ZAMORA, RAMIRO LEONARDO GALARZA ANDRADE,
EDGAR ROMÁN SALAS LEÓN, PEDRO VICENTE VERDUGA CEVALLOS, BOLÍVAR NAPOLEÓN SÁNCHEZ RIVADENEIRA,
PHILLIPS COOPER WILLIAM WALLACE, RAFAEL LEONARDO CÓRDOVA CARVAJAL, TEODORO FERNANDO CALLE
ENRÍQUEZ, MATEO CHOI o CHOI KIM DU YEON, a quienes Fiscalía los acusó en calidad de autores; y, a YAMIL FARAH
MASSUH JOLLEY, a quien Fiscalía lo acusó como cómplice, del delito de cohecho tipificado y sancionado en el artículo 286 del
Código Penal (CP) –vigente a la época de los hechos; y ahora en el artículo 280, incisos 2º y 4º del Código Orgánico Integral
Penal (COIP)-"
9. RESUMEN Y TEORIA DEL CASO PECULADO COHECHO ENR ILICITO FALSO TESTIMONIO ...Anibal Carrera
Resumen Cronologico de la
Corrupción, Colusión IESS
RECAPT SOLNET, Presuntos Sobornos, Peculado,…
Resumen Cronológico I.P No. 170101818022804 y 170101820011698
Contrato
Call Center IESS RECAPT
TEORIA DEL CASO
2018-05-15-CPCCS-Presentacion de la Corrupcion y colusion IESS-RECAPT-SOLNET ...Anibal Carrera
RESUMEN GRAFICO DE LA CORRUPCION Y COLUSION IESS-RECAPT-SOLNET
RESUMEN GRAFICO 2011
2020
Investigación Previa 170101818022804 y 170101820011698
PECULADO ,
presuntos SOBORNOS (COIMAS)…
CORRUPCI
Ó N Y COLUSIÓN IESS RECAPT SOLNET CALL CENTER DEL IESS)
EN PROCESO DE CONTRATACION PUBLICA No. SIE
IESS 015 2011
LA CORRUPCIÓN ES SISTEMÁTICA E INSTITUCIONALIZADA EN EL IESS Y OTRAS ENTIDADES DEL
ESTADO
IMPUNIDAD GARANTIZADA, CONCIERTO PARA DELINQUIR
PRESUNTOS SOBORNOS (COIMAS) DURANTE TODA LA EJECUCIÓN DEL CONTRATO IESS
RECAPT
REFERENCIA CONCURSO SIE
IESS 005 2014 y SIE IESS 048 2016
EXP. Nro. SCPM IIAPMAPR EXP 2013 026 / SCPM CRPI 2015 019
CORRUPCIÓN Y COLUSIÓN (SENTENCIADA por la
Corte Nacional el 19 de octubre 2017 , Proceso No. 17811 2016
01271 y sentencia de Nulidad de contrato ) EN LA IMPUNIDAD HASTA LA PRESENTE FECHA
Investigación Previa 170101818022804
PECULADO, presuntos SOBORNOS (COIMAS )), ENRIQUECIMIENTO ILICITO,
… FALSO TESTIMONIO
CORRUPCIÓN Y COLUSIÓN IESS
RECAPT SOLNET CALL CENTER DEL IESS)
LA CORRUPCIÓN ES SISTEMÁTICA EN EL IESS 2011 2018
ESPELUZNANTE: ENCUBRIMIENTO DE ENTIDADES DEL ESTADO DE LA CORRUPCIÓN Y COLUSIÓN IESS
RECAPT SOLNET.
EMPRESA PERJUDICADA: CRONIX CIA. LTDA. EXP. Nro. SCPM IIAPMAPR EXP 2013 026 / SCPM CRPI 2015 019
Corrupción y colusión en el IESS desde 2011 al 2017, … durante las administraciones de:
González, Cordero, Villacrés , Espinosa,..
Oficio no 07993 dad sy-ss 10 de abril del 2015 mba msc anibal carrera-pres cr...Anibal Carrera
Oficio de Contraloría No. 07993-DADSySS, de 10 de abril de 2015, en el cual el Organismo de Control Comunica a Aníbal Carrera y CRONIX que una vez realizado el examen especial a los pagos y liquidación del contrato IESS-CRONIX, de 24 de Agosto de 2009 a 24 de febrero de 2012, ANibal Carrera ni Cronix tiene ninguna responsabilidad, es decir CRonix cumplió mucho mas allá del 100% del Contrato, en los siuientes termino:
"De la normativa antes expuesta se colige con claridad que, este organismo de control ha actuado en apego a las disposiciones constitucionales y legales. En vista de no existir ningún tipo de responsabilidad en contra del representante legal de su empresa no fue necesario comunicarle resultados provisionales, ni proceder con la convocatoria a la conferencia final de comunicación de resultados mediante la lectura del borrador del informe. Además para su conocimiento, le indico que el informe de referencia se encuentra en tramite de revisión."
47440 aa-fa fge acto administrativo videos calumniosos contra anibal carrera...Anibal Carrera
La pandemia de COVID-19 ha tenido un impacto significativo en la economía mundial y las vidas de las personas. Muchos países han impuesto medidas de confinamiento que han cerrado negocios y escuelas. Aunque estas medidas han ayudado a reducir la propagación del virus, también han causado un aumento en el desempleo y problemas económicos. Se necesitan esfuerzos coordinados a nivel mundial para desarrollar tratamientos y vacunas contra el virus, y para reconstruir las economías a medida que la pandemia disminuya.
Oficio nº pe 2018-11-05-02 dra diana salazar-uafe asunto-pedido-evidenciar qu...Anibal Carrera
Quito DM, 05 de Noviembre 2018
Oficio Nº PE-2018-11-05-02
UNIDAD DE ANÁLISIS FINANCIERO Y ECONÓMICO (UAFE)
Dra. DIANA SALAZAR MÉNDEZ
DIRECTORA GENERAL
Presente.-
REFERENCIA: IP. 170101818022804 de 16 de febrero 2018, por Peculado, Cohecho, Concusión, Enriquecimiento Ilícito, … CORRUPCION Y COLUSION EN EL IESS
ASUNTO: PEDIDO: EVIDENCIAR QUIENES Y CUANTO SE HABRIAN REPARTIDO EN LOS PRESUNTOS SOBORNOS (COIMAS), DURANTE TODA LA EJECUCION DEL CONTRATO IESS-RECAPT, QUE TIENE IIRP DADSySS-0003-2013. ESTA INVESTIGACIÓN SOLO LO PUEDE HACER LA UAFE.
Oficio nº pe 2018-08-05-01 scpm fge pge cj asunto entrega de prueba concluy...Anibal Carrera
Quito DM, 05 de Agosto de 2018
Oficio Nº PE-2018-08-05-01
SUPERINTENDENCIA DE CONTROL DEL PODER DE MERCADO (SCPM)
Ing. Christian Ruiz Hinojosa, Superintendente de Control del Poder de Mercado (e)
PROCURADURIA GENERAL EL ESTADO (PGE)
Dr. Iñigo Salvador Crespo, Procurador General
FISCALIA GENERAL DEL ESTADO
Dr. Edwin Pérez, Fiscal General
CONSEJO DE LA JUDICATURA (CJ)
Dr. Juan Vizueta Ronquillo, Director General
Dr. Juan Pablo Albán, Vocal
Dr. Aquiles Rigail, Vocal
Presente;
REFERENCIA: SCPM incumple (desacato) Sentencia de Casación de la Colusión IESS-RECAPT-SOLNET, de 19 de octubre de 2017, proceso 17811-2016-01271.
ASUNTO: ENTREGA DE PRUEBA CONCLUYENTE PRESENTADA POR LA SCPM, EN JUICIO DE APELACIÓN DE LA COLUSIÓN: Oficio Nro. SERCOP-DGDA-2018-0039-OF de 01 de Agosto de 2018; Oficio Nro. SERCOP-SDG-2018-0308-OF de 06 de abril 2018; y Memorando Nro. SERCOP-CTIT-2018-0150-M de 03 de abril de 2018: LOS COLUSIONADOS, RECAPT Y SOLNET, INGRESARON LAS CONVALIDACIONES DESDE LA MISMA DIRECCIÓN IP (misma computadora). Se ocultó 6 ½ años esta prueba.
CRONIX CIA: LTDA, ES LA VICTIMA DE LA CORRUPCIÓN Y COLUSIÓN.
Momorando scpm crpi-2019-376 de 11 noviembre de 2019 139Anibal Carrera
La pandemia de COVID-19 ha tenido un impacto significativo en la economía mundial. Muchos países experimentaron fuertes caídas en el PIB y aumentos en el desempleo debido a los cierres generalizados y las restricciones a los viajes. Aunque las vacunas han permitido la reapertura de muchas economías, los efectos a largo plazo de la pandemia en sectores como el turismo y los viajes aún no están claros. Se espera que la recuperación económica mundial sea desigual y dependa de factores como el control
Oficio pe 2019-12-17-03 para anticorrupcion presidencia republica 17 dic2019Anibal Carrera
Quito DM, 17 de diciembre 2019
Oficio Nº PE-2019-12-17-03
PRESIDENCIA DE LA REPUBLICA DE ECUADOR
Abg. Dora Ordoñez
Secretaría Anticorrupción
Presente.-
REFERENCIA: INCUMPLIMIENTO DE RESOLUCION de 08 de Octubre de 2019 de la CRPI
Corrupción y Colusión IESS-RECAPT-SOLNET.
ASUNTO: ENTREGA DE RESOLUCION. PEDIDOS.
Oficio pe 2019-12-10-01 para anticorrupcion presidencia rep. 10 dic2019Anibal Carrera
Quito DM, 10 de diciembre 2019
Oficio Nº PE-2019-12-10-01
PRESIDENCIA DE LA REPUBLICA DEL ECUADOR
Abg. Ing. Dora Ordoñez Cueva
SECRETARIA ANTICORRUPCION
Presente.-
REFERENCIA: COMBATE A LA CORRUPCION
CORRUPCION Y COLUSION IESS-RECAPT-SOLNET: Cumplimiento de sentencia en proceso 17811-2016-01271.
ASUNTO: PEDIDO DE REUNION URGENTE. Otro caso de Corrupción en el IESS y los mismos actores: Ramiro González y María Sol Larrea, … el mexicano Fernado Colunga, ...
Sentencia proceso-17811-2013-14713-nulidad-de-contrtao-iess-recapt-16-marzo-2016Anibal Carrera
Sentencia de Nulidad de Contrato IESS-RECAPT del SATJE de Tribunal Contencioso Administrativo de febrero de 2016, ratificada por la Corte Nacional de Justicia en Febrero de 2019
2do Examen Especial al Contrato IESS-RECAPT (call Center del IESS), No. DADSySS-0002-2016 a 18 meses de contrato y prorrogas, pagos indebidos y en exceso sin sustento legal de mas de doce (12) millones de dolares.
3174 dad sy-ss-0008-2013-informe-ee-call-center-contrato-iess-recaptAnibal Carrera
Primer Examen Informe del Examen Especial de Contraloria No. DADSySS-0008-2013 al proceso SIE-IESS-015-2011 y contrato IESS-RECAPT, 6 mese de ejecución de contrato, se derivo un IIRP DADSySS-0003-2013 en febrero 2013
49 dad sy ss-0003-2013 informe de indicios de responsabilidad penal_compressedAnibal Carrera
Informe con Indicios de Responsabilidad Penal DADSySS-0003-2013, con 1,2 millones dedolares de pagos en exceso indebidos, Ramiro Gonzalez encabeza la lista Contrato IESS-RECAPT Call center del IESS
Oficio no pe 2019-05-22-02 secretaria anticorrupcion corrupcion y colusion ie...Anibal Carrera
Quito DM, 21 de mayo de 2019
Oficio No. PE-2019-05-21-02
PRESIDENCIA DE LA REPUBLICA
SECRETARIA ANTICORRUPCION
Señor Especialista Mario Fabricio Godoy Naranjo
DIRECTOR DE GESTION DE CAUSAS
En su despacho
REFERENCIA: PR-DGDC-2019-0001-O de 25 de abril 2019.
PROBADA LA VULNERACION DE NUESTROS DERECHOS CONSTITUCIONALES
ASUNTO: ENTREGA DE INFORMACION, PEDIDO DE ACCESO A LA INFORMACION Y PEDIDO DE REUNION.
LA SCPM EN EL PROCESO DE CORRUPCION Y COLUSION IESS-RECAPT-SOLNET, OCULTÓ Y OMITIÓ LA PRUEBA CONCLUYENTE EN LA RESOLUCION DE 07 DE SEPTIEMBRE DE 2015; Y POR SEGUNDA VEZ OCULTA Y OMITE EN RESOLUCIÓN DE 01 DE ABRIL 2019.
Pe 2019-03-15-03 pedido urgente a la secretaria cumpli con art 422 deber de d...Anibal Carrera
Quito DM, 15 de Marzo de 2019 Oficio Nº PE-2019-03-15-02 SECRETARIA ANTICORRUPCIÓN Dr. Ivan Granda, Secretario Referencia: CORRUPCION Y COLUSION IESS-RECAPT-SOLNET, LA SCPM HA ADECUADO SU CONDUCTA AL ARTs. 272, 277 y 282 DEL COIP. Investigación Previa No. 170101818022804 (39-2018): PECULADO, CORRUPCION Y COLUSION SISTEMATICA E INSTITUCIONALIZADA EN EL IESS, PECULADO, COHECHO, ENRIQUECIMIENTO ILICITO, PERJURIO Y FALSO TESTIMONIO, FRAUDE PROCESAL, Delincuencia Organizada, Asociación Ilícita,… INCREIBLE LENTITUD DE la Superintendencia de Control de Poder de Mercado (Art. 282) IMPUNIDAD GARANTIZADA (Ocultamiento de prueba concluyente: Art. 272) CORRUPCIÓN SISTEMÁTICA E INSTITUCIONALIZADA, PECULADO,… (Art. 277) CONCIERTO PARA DELINQUIR ASUNTO: PEDIDO URGENTE A LA SECRETARIA CUMPLIR CON “ART 422.- DEBER DE DENUNCIAR” DEL COIP. PEDIDO DE REUNION.
Pe 2019-03-15-03 pedido urgente a la secretaria cumpli con art 422 deber de d...Anibal Carrera
Quito DM, 15 de Marzo de 2019
Oficio Nº PE-2019-03-15-02
SECRETARIA ANTICORRUPCIÓN
Dr. Ivan Granda, Secretario
Referencia: CORRUPCION Y COLUSION IESS-RECAPT-SOLNET, LA SCPM HA ADECUADO SU CONDUCTA AL ARTs. 272, 277 y 282 DEL COIP.
Investigación Previa No. 170101818022804 (39-2018): PECULADO, CORRUPCION Y COLUSION SISTEMATICA E INSTITUCIONALIZADA EN EL IESS, PECULADO, COHECHO, ENRIQUECIMIENTO ILICITO, PERJURIO Y FALSO TESTIMONIO, FRAUDE PROCESAL, Delincuencia Organizada, Asociación Ilícita,…
INCREIBLE LENTITUD DE la Superintendencia de Control de Poder de Mercado (Art. 282)
IMPUNIDAD GARANTIZADA (Ocultamiento de prueba concluyente: Art. 272)
CORRUPCIÓN SISTEMÁTICA E INSTITUCIONALIZADA, PECULADO,… (Art. 277)
CONCIERTO PARA DELINQUIR
ASUNTO: PEDIDO URGENTE A LA SECRETARIA CUMPLIR CON “ART 422.- DEBER DE DENUNCIAR” DEL COIP. PEDIDO DE REUNION.
2018 05-15-cpccs-presentacion de la corrupcion y colusion iess-recapt-solnet ...Anibal Carrera
Este documento resume la corrupción y colusión sistemática en el IESS entre 2011 y 2019 durante procesos de contratación pública para servicios de call center. Se evidencia que las empresas RECAPT y SOLNET presentaron ofertas de manera coludida en el proceso SIE-IESS-015-2011, ingresándolas desde la misma dirección IP. A pesar de las múltiples denuncias y pruebas, como exámenes de la Contraloría que encontraron pagos indebidos, la corrupción ha quedado en la impunidad. El documento detalla
3. 12 sep 2019 y articulos de 6 7 8 9 10 11 mayo 2019 entrevista anibal carr...Anibal Carrera
El documento describe un caso extenso de corrupción y colusión en el sistema judicial ecuatoriano relacionado con un contrato entre el IESS, RECAPT y SOLNET. A lo largo de varios años se han cometido actos de ocultamiento de pruebas, archivo indebido de casos, designación de jueces con conflictos de interés y demoras excesivas que garantizan la impunidad. El documento proporciona 15 puntos detallando estas irregularidades y denunciando la existencia de una red de corrupción institucionalizada en el poder judicial.
Essential Tools for Modern PR Business .pptxPragencyuk
Discover the essential tools and strategies for modern PR business success. Learn how to craft compelling news releases, leverage press release sites and news wires, stay updated with PR news, and integrate effective PR practices to enhance your brand's visibility and credibility. Elevate your PR efforts with our comprehensive guide.
El Puerto de Algeciras continúa un año más como el más eficiente del continente europeo y vuelve a situarse en el “top ten” mundial, según el informe The Container Port Performance Index 2023 (CPPI), elaborado por el Banco Mundial y la consultora S&P Global.
El informe CPPI utiliza dos enfoques metodológicos diferentes para calcular la clasificación del índice: uno administrativo o técnico y otro estadístico, basado en análisis factorial (FA). Según los autores, esta dualidad pretende asegurar una clasificación que refleje con precisión el rendimiento real del puerto, a la vez que sea estadísticamente sólida. En esta edición del informe CPPI 2023, se han empleado los mismos enfoques metodológicos y se ha aplicado un método de agregación de clasificaciones para combinar los resultados de ambos enfoques y obtener una clasificación agregada.
Here is Gabe Whitley's response to my defamation lawsuit for him calling me a rapist and perjurer in court documents.
You have to read it to believe it, but after you read it, you won't believe it. And I included eight examples of defamatory statements/
An astonishing, first-of-its-kind, report by the NYT assessing damage in Ukraine. Even if the war ends tomorrow, in many places there will be nothing to go back to.
Acolyte Episodes review (TV series) The Acolyte. Learn about the influence of the program on the Star Wars world, as well as new characters and story twists.
1. 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------x
FEDERAL TRADE COMMISSION,
Plaintiff, MEMORANDUM AND ORDER
- against - 10 Civ. 3551 (ILG) (RLM)
CONSUMER HEALTH BENEFITS
ASSOCIATION, et al.,
Defendants.
------------------------------------------------------x
GLASSER, Senior United States District Judge:
On October 12, 2011, the Court affirmed Magistrate Judge Mann’s order dated
August 18, 2011 granting plaintiff the Federal Trade Commission (the “FTC”) leave to
amend the complaint in this consumer protection arising under the Federal Trade
Commission Act (“FTC Act”), 15 U.S.C. §§ 45(a), 53(b) and 57b, the Telemarketing and
Consumer Fraud and Abuse Prevention Act (“Telemarketing Act”), 15 U.S.C. §§ 6101-
6108, and the FTC Telemarketing Sales Rule (“TSR”), 16 C.F.R. § 310, et seq. Order
dated Oct. 12, 2011 at 5-10 (the “Order”) (Dkt. No. 250). The FTC on October 13, 2011
filed an amended complaint, Am. Compl. dated Oct. 13, 2011 (Dkt. No. 252), and on
November 22, 2011, each of the defendants newly-named in the amended complaint
moved to dismiss it pursuant to Rule 12(b)(6) and Rule 9(b) of the Federal Rules of Civil
Procedure, largely rehashing arguments Magistrate Judge Mann and the Court have
already considered and rejected. Those newly-named defendants are: John Schwartz
(“Schwartz”), a member of NBC and NBS; Wendi Tow (“Tow”), also a member of NBC
and NBS; Guaranteed Trust Life Insurance Co. (“GTLI”); Vantage America Solutions,
Inc. (“Vantage”), a subsidiary of GTLI; Century Senior Services (“Century”), also a
2. 2
subsidiary of GTLI; and a number of GTLI’s employees and officers: Jeffrey Burman
(“Burman”); Richard Holson, III (“Holson”); and Barbara Taube (“Taube”) (together,
the “GTLI Defendants”).1 The GTLI Defendants have moved in the alternative for a
more definite statement of the claims against them pursuant to Fed. R. Civ. P. 12(e). For
the following reasons, the motions to dismiss and the motion for a more definite
statement are DENIED.
I. BACKGROUND
The following facts are taken from the amended complaint and are accepted as
true for the purpose of this motion. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).
This action concerns the deceptive marketing of a medical discount plan in
violation of the FTC Act, the Telemarketing Act, and the TSR by the defendants. The
crux of the amended complaint is that defendants, in a common enterprise, solicited
consumers seeking major medical insurance2 and, in addition to using high-pressure
1 The Court will refer to GTLI, Vantage, and Century as the “GTLI Corporate
Defendants,” and to Burman, Holson, and Taube as the “GTLI Individual Defendants.”
The other defendants in this action are: Consumer Health Benefits Association
(“CHBA”), National Association For Americans (“NAFA”); National Benefits
Consultants, LLC (“NBC”); National Benefits Solutions, LLC (“NBS”) (together,
“Corporate Defendants”); Ron Werner, individually as Managing Member of NBC and
NBS and President and Managing Partner of CHBA; Rita Werner, individually and as
the Senior Vice President and Director of Operations of CHBA; and Louis Leo,
individually, as a Managing Member of NBC and NBS, and as Vice President and
Treasurer of CHBA.
2 While major medical health insurance generally involves an agreement between
3. 3
sales tactics, falsely represented that their medical discount plan was major medical
health insurance, when it was not, or that their medical discount plan would provide
similar coverage to major medical health insurance, when it did not—actions that
caused numerous consumers to purchase the medical discount plan. See, e.g., Am.
Compl. ¶¶ 22, 26, 29-31, 33.3 The FTC also alleges that defendants made false
representations to consumers regarding the discount plan’s cancellation policy and
charged consumers fees for the plan even after consumers had been told that the plan
had been cancelled. Am. Compl. ¶¶ 39-40.
The role played by each of the newly-added defendants in the venture was one
that bespeaks a common enterprise. GTLI acted as an administrator for the medical
discount plan by, among other things, collecting consumer’s enrollment fees, paying
rent for office space for CHBA, maintaining bank accounts on behalf of defendants, and
responding to consumer complaints regarding deceptive marketing of the medical
discount plan. Am. Compl. ¶ 46. Three of its executives—Burman, Taube, and Holson—
sat on the de facto board of directors of CHBA, and discussed at meetings sales
strategies and membership goals, along with litigation brought by the Illinois Attorney
General regarding deceptive sales practices. Am. Compl. ¶ 47. GTLI also deposited
an insurance company and a consumer in which the insurer agrees to pay a substantial
portion of the healthcare expenses that a consumer might incur in exchange for
payment of a premium by the consumer, the medical discount plans marketed by
defendants “purported to provide” consumers with access to various discounts on
healthcare and healthcare related services and products. Am. Compl. ¶ 25.
3 NBC and NBS are specifically alleged to have engaged in telemarketing of the
medical discount plan beginning in 2003 and 2009 respectively. Am. Compl. ¶ 24.
4. 4
consumer payments for the medical discount plan into an account that it maintained
and commingled these funds with funds unrelated to the plan. Am. Compl. ¶ 48.
Vantage prepared the founding corporate documents for CHBA and NBC, named
their directors, created NAFA and NBS, reviewed sales materials, selected medical
discount plan components, and contracted with vendors to provide purported plan
benefits. Am. Compl. ¶ 49. It also reviewed marketing materials, assisted with
responding to consumer complaints regarding the plan, and served as the Discount
Medical Plan Organization (“DMPO”) that provided the plan. Am. Comp. ¶ 50.4 In
addition, Burman, who sat on CHBA’s de facto board of directors, was its president.
Am. Compl. ¶¶ 51, 65-67.
Meanwhile, Century, among other things, provided office space to CHBA and
NBC, paid rent and utilities for the office space, shared expenses with CHBA and NBC,
provided funding to hire employees and contractors for CHBA and NBC, operated a call
center to manage customer service calls, and distributed materials to new members of
the medical discount plan. Am. Compl. ¶ 52.
With respect to the GTLI Individual Defendants—Burman, Taube, and Holson—
in addition to sitting on the de facto board of CHBA, they were involved in the
marketing and sale of the medical discount plan in the following ways: (1) Burman
designed the medical discount plan and reviewed sales scripts and marketing materials
4 As the DMPO, Vantage entered into a consent order with the Florida Office of
Insurance Regulation regarding nearly a dozen violations of the Florida Insurance and
Administrative Codes, including violations based on the failure to properly advise
consumers of the plan’s no-refund policy, not providing refunds, and making it difficult
for consumers to cancel. Am. Compl. ¶ 50.
5. 5
used by NBC and NBS, Am. Compl. ¶ 65; (2) Taube determined how to distribute funds
among the entity defendants and whether to refund consumers who requested
cancellations and refunds as a result of misrepresentations concerning the plan, Am.
Compl. ¶ 68; and (3) Holson oversaw the sale and administration of the medical
discount plan, Am. Compl. ¶ 71.
Tow and Schwartz were also responsible for overseeing certain aspects of the
medical discount plan. Tow, as Senior Vice President in charge of member services of
CHBA and managing member of NBC, orchestrated these companies’ business
activities, including reviewing consumer complaints and overseeing cancellation and
refund practices. Am. Compl. ¶ 61. Similarly, Schwartz, as managing member of NBC,
orchestrated the company’s business activities, including training and managing NBC’s
sales agents who marketed the medical discount plan. Am. Compl. ¶ 63.
In light of these allegations, the Court on October 12, 2011 affirmed Magistrate
Judge Mann’s ruling granting the FTC leave to file an amended complaint and her
conclusions that the proposed amended complaint contained sufficient factual
allegations to survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and that
the claims at issue were not subject to the heightened pleading requirements of Fed. R.
Civ. P. 9(b).
Nevertheless, on November 22, 2011, the GTLI Defendants filed a motion to
dismiss pursuant to Fed. R. Civ. 12(b)(6), or, alternatively, for a more definite statement
pursuant to Fed. R. Civ. P. 12(e). GTLI’s Memorandum of Law dated Nov. 22, 2011
(“GTLI’s Mem.”) (Dkt. No. 270). That same day, Tow and Schwartz filed a motion to
dismiss pursuant to Fed. R. Civ. P. 9(b). Tow and Schwartz’s Memorandum of Law
6. 6
dated Nov. 22, 2011 (“Tow’s Mem.”) (Dkt. No. 265). The FTC filed its opposition
submissions on December 13, 2011. FTC’s Memorandum of Law in Opposition dated
Dec. 13, 2011 (“Pl.’s Opp’n”) (Dkt. No. 276). The GTLI Defendants on December 23,
2011 filed their submissions in reply. GTLI’s Reply Memorandum of Law dated Dec. 23,
2011 (“GTLI’s Reply”) (Dkt. No. 278). Tow and Schwartz did not file reply submissions.
II. DISCUSSION
A. Applicable Legal Principles
1. Legal Standard for 12(b)(6) Motions
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to
include “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss pursuant to Rule
12(b)(6), the FTC’s pleading must contain “sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S. Ct. at 1940 (quoting
Twombly, 550 U.S. at 570). A claim has facial plausibility “when the plaintiff pleads
factual content that allows the Court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. Although
detailed factual allegations are not necessary, the pleading must include more than an
“unadorned, the-defendant-unlawfully-harmed-me accusation;” mere legal conclusions,
“a formulaic recitation of the elements of a cause of action,” or “naked assertions” by the
plaintiff will not suffice. Id. at 1949 (alteration in original) (internal quotations,
citations, and alterations omitted). This plausibility standard “is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). Determining whether a
7. 7
complaint states a plausible claim for relief is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense. But where the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is
entitled to relief.’” Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).
For the foregoing reasons, the motions pursuant to Fed. R. Civ. P. 12(b)(6) are
denied.
2. Legal Standard for 12(e) Motions
Rule 12(e) of the Federal Rules of Civil Procedure provides, in relevant part, that
a party may move for a more definite statement of a pleading which is “so vague or
ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e).
Motions pursuant to Fed. R. Civ. P. 12(e) “should not be granted unless the complaint is
so excessively vague and ambiguous as to be unintelligible and as to prejudice the
defendant seriously in attempting to answer it. The Rule is designed to remedy
unintelligible pleadings, not to correct for lack of detail.” Maxwell v. N.Y. Univ., No. 08
Civ. 3583 (HB), 2008 WL 5435327, at *2 (S.D.N.Y. Dec. 31, 2008) (internal citations
and quotation marks omitted); accord 1 Michael C. Silberberg, et al., Civil Practice in the
Southern District of New York § 11:19 (2d ed. 2010) (“[A] motion for a more definite
statement should not be granted if the complaint complies with the requirements of
Fed. R. Civ. P. 8.” (citations omitted)). Moreover, Rule 12(e) motions are generally
disfavored because of their dilatory effect. See, e.g., Joya v. Verizon N.Y., Inc., No. 08
Civ. 5328 (PKL), 2008 WL 4667987, at *1-2 (S.D.N.Y. Oct. 20, 2008) (collecting cases).
For the foregoing reasons, the motion pursuant to Fed. R. Civ. P. 12(e) is denied.
8. 8
3. The Law of the Case Doctrine
The law of the case doctrine “posits that when a court decides upon a rule of law,
that decision should continue to govern the same issues in subsequent stages in the
same case.” Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 75 L. Ed. 2d 318
(1983). The doctrine generally applies unless there has been “an intervening change in
law, availability of new evidence, or the need to correct a clear error or prevent a
manifest injustice.” Johnson v. Holder, 564 F.3d 95, 99-100 (2d Cir. 2009). It is
prudential and discretionary; it “does not rigidly bind a court to its former decisions, but
is only addressed to its good sense.” Higgins v. Cal. Prune & Apricot Grower, Inc., 3
F.2d 896, 898 (2d Cir. 1924) (L. Hand, J.); accord Doctor’s Assocs. v. Distajo, 107 F.3d
126, 131 (2d Cir. 1997) (“[The doctrine] does not constitute a limitation on the court’s
power but merely expresses the general practice of refusing to reopen what has been
decided.”). It ensures that “where litigants have once battled for the court’s decision,
they should neither be required, nor without good reason permitted, to battle for it
again.” Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand,
LLP, 322 F.3d 147, 167 (2d Cir. 2003) (citation and internal quotation marks omitted).
Thus, as a general rule, a court should be “‘loathe’ to revisit an earlier decision ‘in the
absence of extraordinary circumstances.’” N. River Ins. Co. v. Phil. Reinsurance Corp.,
63 F.3d 160, 165 (2d Cir. 1995) (quoting Christianson v. Colt Indus. Operating Corp.,
486 U.S. 800, 817, 108 S. Ct. 2166, 2178, 100 L. Ed. 2d 811 (1988)). Additionally, “a
court may raise law of the case issues sua sponte.” United States v. Matthews, 643 F.3d
9, 12 n.1 (1st Cir. 2011) (citation omitted); see also DiLaura v. Power Auth. of State of
N.Y., 982 F.2d 73, 75 (2d Cir. 1992).
9. 9
4. Section 5 of the FTC Act
Section 5(a)(1) of the Federal Trade Commission Act (“FTC Act”) prohibits
“[u]nfair or deceptive acts or practices in or affecting commerce.” 15 U.S.C. § 45(a)(1).
To state a claim for a deceptive act or practice under Section 5(a)(1), a plaintiff must
allege facts sufficient to show: “[1] a representation, omission, or practice, that [2] is
likely to mislead consumers acting reasonably under the circumstances, and [3], the
representation, omission, or practice is material.” Fed. Trade Comm’n v. Verity Int’l,
Ltd., 443 F.3d 48, 63 (2d Cir. 2006) (internal quotation marks and citation omitted).
There is no requirement that the deception be made with intent to deceive; it is enough
that the representations or practices were likely to mislead consumers acting
reasonably. Id. Further, if the structure, organization, and operation of a business
venture among separate corporate entities reveal a common enterprise or a “maze of
interrelated companies,” the FTC Act disregards the corporate form. Del. Watch Co. v.
Fed. Trade Comm’n, 332 F.2d 745, 746 (2d Cir. 1964) (per curiam). Factors relevant in
a court’s consideration of whether a common enterprise among entities exists include
whether they (1) maintain officers and employees in common, (2) operate under
common control, (3) share offices, (4) commingle funds, and (5) share advertising and
marketing. See, e.g., Fed. Trade Comm’n v. Neovi, Inc., 598 F. Supp. 2d 1104, 1116 (C.D.
Cal. 2008) (corporations found to be in common enterprise and thus held jointly and
severally liable where corporations shared office space, executives and employees,
payroll funds, and advertising).
With respect to individual liability, “[a]n individual will be liable for corporate
violations of the FTC Act if (1) he participated directly in the deceptive acts or had the
10. 10
authority to control them and (2) he had knowledge of the misrepresentations, was
recklessly indifferent to the truth or falsity of the misrepresentation, or was aware of a
high probability of fraud along with an intentional avoidance of the truth.” Fed. Trade
Comm’n v. Stefanchik, 559 F.3d 924, 931 (9th Cir. 2009) (citation omitted); see also
Fed. Trade Comm’n v. Amy Travel Serv., Inc., 875 F.2d 564, 574 (7th Cir. 1989). The
degree of participation in a corporate defendant’s affairs can be probative of knowledge.
See, e.g., Amy Travel, 875 F.2d at 574. Further, an individual’s status as a corporate
officer on behalf of a corporate defendant can be probative of control. See, e.g. Fed.
Trade Comm’n v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1170 (9th Cir. 1997)
(president of defendant corporation with authority to sign documents on its behalf had
requisite control over corporation such that individual liability could be imposed).
5. The Telemarketing Sales Rule
The Telemarketing Sales Rule was promulgated by the FTC under the
Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. § 6101 et seq.,
and forbids a seller or telemarketer from, among other things, “[m]isrepresenting,
directly or by implication . . . [a]ny material aspect of the performance, efficacy, nature,
or central characteristics of goods or services that are the subject of a sales offer.” 16
C.F.R. § 310.3(a)(2)(iii). It also requires a seller or telemarketer to disclose any no-
refund policy “in a clear and conspicuous manner.” Id. § 310.3(a)(1). This disclosure
must be made “[b]efore a customer consents to pay for goods or services.” Id. A
violation of the TSR constitutes a “deceptive act or practice” in violation of Section 5(a)
of the FTC Act. See 15 U.S.C. § 6105(b) (allowing FTC to enforce violations of the TSR as
though they were violations of the FTC Act); see also Stefanchik, 559 F.3d at 930 n.17.
11. 11
The TSR also forbids “assisting or facilitating” violations of the TSR: “[i]t is a
deceptive telemarketing act or practice and a violation of this Rule for a person to
provide substantial assistance or support to any seller or telemarketer when that person
knows or consciously avoids knowing that the seller or telemarketer is engaged in any
act or practice that violates §§ 310.3(a), (c) or (d), or § 310.4 of this Rule.” 16 C.F.R. §
310.3(b). The threshold for what constitutes “substantial assistance” is low: “there
must be a connection between the assistance provided and the resulting violations of the
core provisions of the TSR.” United States v. Dish Network, L.L.C., 667 F. Supp. 2d 952,
961 (C.D. Ill. 2009) (substantial assistance found where defendant paid dealers to
engage in telemarketing that violated TSR and allegedly knew or consciously avoided
knowledge of violations).
B. Application
1. Rule 9(b) Does not Apply to the FTC’s Claims
The GTLI Defendants, along with Tow and Schwartz, argue the claims in the
amended complaint sound in fraud and thus require application of the heightened
pleading standard of Fed. R. Civ. P. 9(b), which the factual allegations in the complaint
fail to meet. GTLI’s Mem. at 4-6; Tow’s Mem. at 4-7.5 It is true that there is a split in
authority regarding whether claims brought under the FTC Act and, by extension, the
TSR require application of Fed. R. Civ. P. 9(b), compare Fed. Trade Comm’n v. Lights of
Am., Inc., 760 F. Supp. 2d 848, 854 (C.D. Cal. 2010) (concluding that “Rule 9(b) applies
to claims for violation of the FTC Act”), with Fed. Trade Comm’n v. Freecom Commc’ns,
5 Fed. R. Civ. P. 9(b) provides that “[i]n alleging fraud or mistake, a party must
state with particularity the circumstances constituting fraud or mistake. Malice, intent,
knowledge, and other conditions of a person’s mind may be alleged generally.”
12. 12
Inc., 401 F.3d 1192, 1204 n.7 (10th Cir. 2005) (noting in dicta that “[a] § 5 claim simply
is not a claim of fraud as that term is commonly understood or as contemplated by Rule
9(b), . . . . Unlike the elements of common law fraud, the FTC need not prove scienter,
reliance, or injury to establish a § 5 violation” (collecting cases)), and Fed. Trade
Comm’n v. Medical Billers Network, Inc., 543 F. Supp. 2d 283, 314 (S.D.N.Y. 2008)
(expressing doubt in dicta as to the applicability of Rule 9(b) to claim alleging violation
of TSR); see generally 2-9 James W. Moore, Moore’s Federal Practice, § 9.03[e] (3d ed.
1997) (discussing split in authority). But the Court has already considered and rejected
the contention that the claims in the amended complaint sound in fraud. Order at 9
(“[T]he claims at issue here do not sound in fraud and are thus not subject to the
heightened pleading requirements of Fed. R. Civ. P. 9(b).”). This ruling is the law of the
case, and prudence counsels against disturbing it. There is no controlling authority in
this Circuit with respect to whether claims arising under the FTC Act and the TSR sound
in fraud; nor is there a need to correct a clear error or prevent a manifest injustice. See
Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1991) (“Mere doubt . . . is not enough to
open the point for full reconsideration.”).
Even if the Court were to reach the issue of whether the claims sound in fraud
and are thus subject to the pleading requirements of Fed. R. Civ. P. 9(b), it would
conclude that they do not. Instructive is the Second Circuit’s decision in Pelman v.
McDonald’s Corp., 396 F.3d 508, 511 (2d Cir. 2005), in which the court considered
whether claims brought under Section 349 of the New York General Business Law—part
of the New York Consumer Protection Act—were subject to Rule 9(b)’s pleading
13. 13
requirements.6 Answering this question in the negative, the Second Circuit found that
“because § 349 extends well beyond common-law fraud to cover a broad range of
deceptive practices, and because a private action under § 349 does not require proof of
the same essential elements (such as reliance) as common-law fraud, an action under §
349 is not subject to the pleading-with-particularity requirements of Rule 9(b).” Id. at
511 (citations omitted).7
Similarly, here, claims brought under Section 5 of the FTC Act also do not require
proof of the same essential elements of common law fraud. Fraud claims under New
York law require: (1) a misrepresentation or an omission of material fact which was
false and known to be false by the defendant; (2) the misrepresentation was made for
the purpose of inducing the plaintiff to rely upon it; (3) justifiable reliance of the
plaintiff on the misrepresentation or material omission; and (4) injury, see, e.g.,
Jablonski v. Rapalje, 14 A.D.3d 484, 487, 788 N.Y.S.2d 158 (2d Dep’t 2005) (citations
omitted), while claims brought under Section 5 of the FTC Act require proof of neither
scienter, nor reliance, nor injury, see, e.g., Freecom Commc’ns, Inc., 401 F.3d at 1204
6 The New York Court of Appeals has referred to the New York Consumer
Protection Act as a “mini-FTC act,” People v. Applied Card Sys., Inc., 11 N.Y.3d 105, 120,
894 N.E.2d 1, 863 N.Y.S.2d 615 (2008), and has noted that the New York legislature
modeled portions of it on the FTC Act, Oswego Laborers’ Local 214 Pension Fund v.
Marine Midland Bank, 85 N.Y.2d 20, 26, 647 N.E.2d 741, 623 N.Y.S.2d 529 (1995).
7 Section 349 makes unlawful “[d]eceptive acts or practices in the conduct of any
business, trade or commerce or in the furnishing of any service in this state.” N.Y. Gen.
Bus. Law § 349(a) (McKinney 2012). The elements of a Section 349 claim are as follows:
(1) the defendant’s challenged acts or practices must have been directed at consumers,
(2) the acts or practices must have been misleading in a material way, and (3) the
plaintiff must have sustained injury as a result.” Cohen v. JP Morgan Chase & Co., 498
F.3d 111, 126 (2d Cir. 2007) (citations omitted).
14. 14
n.7. Moreover, like Section 349, Section 5 of the FTC Act covers a broad range of
deceptive practices, declaring unlawful any “unfair or deceptive acts or practices in or
affecting commerce.” 15 U.S.C. § 45(a).8 Where, as here, similar statutory provisions are
found in comparable statutory schemes, courts should presumptively apply them the
same way. See, e.g., Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 640,
127 S. Ct. 2162, 167 L. Ed. 2d 982 (2007) (applying this canon of construction and
finding National Labor Relations Act but not Equal Pay Act or Fair Labor Standards Act
analogous to Title VII for limitations purposes where it “provided a model for Title VII’s
remedial provisions”). Thus, were the Court to reach the issue of whether claims
brought under Section 5 of the FTC Act are subject to Rule 9(b), it would conclude that
in light of the Second Circuit’s interpretation of Section 349 in Pelman, the claims in the
amended complaint need not be pleaded with particularity.9
8 Both of these factors also hold true with respect to claims brought under the
TSR, violations of which also constitute violations of the FTC Act. See 15 U.S.C. §
6105(b).
9 The Court finds unpersuasive the contention of Tow, Schwartz, and the GTLI
Defendants that the Second Circuit’s decision in Rombach v. Chang, 355 F.3d 164 (2d
Cir. 2004), controls. That case merely involved the question of “whether the heightened
pleading standard of Rule 9(b) of the Federal Rules of Civil Procedure applies to claims
brought under Section 11 and Section 12(a)(2) of the Securities Act,” id. at 166, statutory
provisions nothing like the one at issue here.
Their reliance on district court decisions from the Ninth Circuit concluding that
claims brought under Section 5 of the FTC Act are subject to Rule 9(b) is similarly
misplaced. The courts in two of those decisions did so based on Ninth Circuit precedent
that a claim can sound in fraud without having all of the traditional common law
elements of a fraud claim—a conclusion seemingly at odds with Pelman. See Fed. Trade
Comm’n v. Lights of Am., Inc., 760 F. Supp. 2d 848, 852 (C.D. Cal. 2010) (it is “well-
established Ninth Circuit law . . . that, even where a claim does not include all of the
elements of a claim for fraud, it is subject to the heightened pleading requirements of
15. 15
The GTLI Defendants contend that even if the pleading requirements of Rule 9(b)
do not apply, the amended complaint still fails to state a claim. GTLI’s Mem. at 7. Tow
and Schwartz do not; they simply move to dismiss the amended complaint “for failure to
plead fraud with particularity as required by Fed. R. Civ. P. 9(b).” Tow’s Mem. at 3.
Since the Court has already concluded that the amended complaint sufficiently alleges
claims against Tow and Schwartz and that Fed. R. Civ. P. 9(b) is inapplicable, Tow and
Schwartz’s motion to dismiss is DENIED. The Court turns to the GTLI Defendants’
remaining contentions in the following section.
2. The GTLI Defendants’ Remaining Contentions are Meritless
The GTLI Defendants next argue that the amended complaint fails to allege facts
sufficient to support claims based on common enterprise liability against the GTLI
Corporate Defendants. GTLI’s Mem. at 7-10. The Court has already rejected this
argument and addressed each of the cases upon which the GTLI Defendants rely in
support of this contention:
The Magistrate Judge correctly set forth the various factors that courts
balance in determining whether a common enterprise existed—none of
which is dispositive—and identified a number allegations in the amended
complaint that were sufficient to support a claim of common enterprise
liability. As for the cases relied on by the GTLI Corporate Defendants,
each involved a different procedural posture than the one presented here
and, in any event, each ultimately concluded that common enterprise
liability existed. See, e.g., Fed. Trade Comm’n v. Nat. Urological Grp., 645
F. Supp. 2d 1167, 1183-84 (N.D. Ga. 2008) (summary judgment denied
where “overwhelming evidence of the corporations’ interrelated functions”
Rule 9(b) if it sounds in fraud” (citation, quotations, and alteration omitted)); Fed.
Trade Comm’n v. Ivy Capital, Inc., No. 2:11-CV-283 JCM (GWF), 2011 WL 2118626, at
*3 (D. Nev. May 25, 2011) (following reasoning of Lights of America). As for the third,
Federal Trade Comm’n v. Benning, No. C 09-03814 RS, 2010 WL 2605178, at *3-4 (N.D.
Cal. June 28, 2010), the court there applied Rule 9(b) without explanation.
16. 16
existed); Fed. Trade Comm’n v. Neovi, Inc., 598 F. Supp. 2d 1104, 1116
(S.D. Cal. 2008) (common enterprise existed where evidence presented on
summary judgment “show[ed] that there [wa]s no real distinction between
the companies for the purposes of assessing liability under FTC case law”);
Fed. Trade Comm’n v. Data Med. Capital, No. 99 Civ. 1266 (AHS) (EEX),
2010 WL 1049977, at *23 (C.D. Cal. Jan 15, 2010) (evidence presented at
civil contempt hearing sufficient to establish common enterprise among
corporate defendants). As the Magistrate Judge noted, “[w]hether the
evidence ultimately shows that a common enterprise existed need not be
determined at this stage.” Order at 13.
Order at 6-7. These rulings are the law of the case, and the Court declines to revisit
them. The amended complaint sufficiently alleges FTC Act claims against the GTLI
Corporate Defendants based on a theory of common enterprise; accordingly, the GTLI
Defendants’ motion dismiss the FTC Act claims against the GTLI Corporate Defendants
is DENIED.
The GTLI Defendants also contend the amended complaint fails to allege facts
sufficient to show that the GTLI Individual Defendants are jointly and severally liable
for the actions of the GTLI Corporate Defendants. GTLI’s Mem. at 10-15.10 The Court
previously stated:
[The GTLI Individual Defendants] contend, among other things, that the
amended complaint fails to allege sufficient facts to state a claim that they
had the requisite knowledge of the material misrepresentations at issue in
the case. GTLI Mem. at 7-12. This argument fails. The Magistrate Judge’s
conclusion that the amended complaint contains sufficient factual
allegations to state a claim that the GTLI Individual Defendants had at
least “‘reckless indifference to the truth or falsity of [the]
misrepresentations,’” Order at 16 (quoting Fed. Trade Comm’n v. Amy
10 They earlier contended, among other things, “the amended complaint fails to
allege sufficient facts to state a claim that they had the requisite knowledge of the
material misrepresentations at issue in the case.” Order at 7. They acknowledge,
moreover, that they made this argument to the Court previously. GTLI’s Mem. at 11
(“The GTL Defendants have already argued this point in their Objections, and
respectfully refer the Court to that discussion.”).
17. 17
Travel Serv., Inc., 875 F.2d 564, 574 (7th Cir. 1989)), was neither clearly
erroneous nor contrary to law. Indeed, the amended complaint alleges
that each of the GTLI Individual Defendants sat on the de facto board of
directors of CHBA and participated in board meetings in which the board
discussed sales strategies, membership goals, and litigation brought by the
Illinois Attorney General regarding deceptive sales practices. Am. Compl.
¶¶ 66, 69, 72. Further, it alleges that (1) Burman, among other things,
designed the Corporate Defendants’ medical discount plan and reviewed
sales scripts and marketing materials used by NBC and NBS, Am. Compl. ¶
65, (2) Taube, among other things, determined how to distribute funds
among the Corporate Defendants and whether to refund consumers who
requested cancellations and refunds, Am. Compl. ¶ 68, (3) Holson, among
other things, oversaw the sale and administration of the medical discount
plan, Am. Compl. ¶ 71.
This ruling is the law of the case as well, and the amended complaint contains sufficient
factual allegations to show that the GTLI Individual Defendants, by virtue of their roles
as officers of the GTLI Corporate Defendants11 and their participation in various key
aspects of the Corporate Defendants’ business had control over the Corporate
Defendants and at least a “reckless indifference to the truth or falsity of [the]
misrepresentations” at issue in the case, Amy Travel, 875 F.2d at 574. Indeed, with
respect to the GTLI Individual Defendants’ knowledge, the amended complaint alleges
that they each were part of a group referred to internally as “Team CHBA,” participated
in CHBA meetings in which they discussed sales strategies, membership goals, and
“litigation regarding deceptive practices.” Am. Compl. ¶¶ 66, 69, 72.12
11 The Court has already concluded that the amended complaint sufficiently
alleges that the GTLI Corporate Defendants were engaged in a common enterprise with
the Corporate Defendants.
12 The GTLI Individual Defendants make much of the FTC’s use of the term “de
facto board,” contending that “no inference of control should be drawn from the FTC’s
talismanic recitation of the phrase ‘de facto.’” GTLI’s Reply at 7. The Court draws no
such inference. The GTLI Individual Defendants’ participation in CHBA meetings—
18. 18
Further, each of the cases relied upon by the GTLI Individual Defendants in
support of their contention are inapposite. In Federal Trade Commission v. Swish
Marketing, No. C 09-03814 RS, 2010 WL 653486, at *5-6 (N.D. Cal. Feb. 22, 2010), the
court granted the motion to dismiss of the individual defendant, the corporate
defendant’s chief executive officer, where the FTC argued that the individual’s “status as
CEO, standing alone, plausibly demonstrates his control over the company (and
warrants the inference of involvement in the deception)” and where the complaint
presented “no facts to tie [the individual] to the . . . scheme or to suggest his
knowledge.”13 By contrast, here, the FTC does not rely solely on the GTLI Individual
Defendants’ titles in establishing their control or knowledge, and the amended
complaint contains a number of allegations tying the GTLI Individual Defendants to the
Corporate Defendants’ scheme: (1) their participation in de facto CHBA board
meetings, Am. Compl. ¶¶ 66, 69, 72; (2) Burman’s design of the Corporate Defendants’
medical discount plan and review of the sales scripts and marketing materials used by
NBC and NBS, Am. Compl. ¶ 65; (3) Taube’s determination of whether to refund
consumers who requested cancellations and refunds as a result of misrepresentations
regarding the medical discount plan, Am. Compl. ¶ 68; and (4) Holson’s oversight of the
sale and administration of the medical discount plan, Am. Compl. ¶ 71.
whether de facto board meetings or not—instead shed light on the GTLI Individual
Defendants’ knowledge concerning the representations at issue in the case.
13 The court in Federal Trade Commission v. Wellness Support Network, Inc., No.
C–10–04879 JCS, 2011 WL 1303419, at *11 (N.D. Cal. Apr. 4, 2011), upon which the
GTLI Individual Defendants also rely, granted a motion to dismiss the claim against an
individual defendant for the same reason—where “the only factual allegation . . . about
[the individual defendant] is that she was an officer of [the corporate defendant].”
19. 19
Meanwhile, in Federal Trade Commision v. Benning, No. C 09-03814 RS, 2010
WL 2605178, at *5-6 (N.D. Cal. June 28, 2010), a later decision in the same case as
Swish and involving the same individual defendant, the court found that the amended
complaint did in fact sufficiently allege individual liability under the FTC Act where the
FTC averred that the individual defendant owned 30% of the closely-held corporate
defendant and that he received and responded to emails detailing the possibly
fraudulent nature of the corporate defendant’s alleged misrepresentations. As the FTC
correctly notes, however, this case offers “little discussion of what ‘floor’ is required to
meet the minimum threshold for pleading individual liability,” Pl.’s Opp’n at 30 n.19,
and is thus of limited usefulness. The same is true with respect to the other cases upon
which the GTLI Individual Defendants rely. See Wellness Support Network, Inc., 2011
WL 1303419, at *10 (motion to dismiss FTC Act claim against individual defendant
denied where FTC alleged that he was president and owner of corporate defendant, the
corporation was closely held, and he controlled or participated in the corporation’s
advertising and marketing); Fed. Trade Comm’n v. Innovative Mktg., Inc., 654 F. Supp.
2d 378, 388 (D. Md. 2009) (motion to dismiss FTC Act claim against individual
defendants denied where FTC alleged, among other things, that individual defendants, a
corporate officer and his father, harbored millions of dollars of proceeds from marketing
scheme); Fed. Trade. Comm’n. v. Network Servs. Depot, Inc., 617 F.3d 1127, 1140 (9th
Cir. 2010) (affirming finding of personal liability of individual defendants on summary
judgment where, among other things, they were aware of numerous warning signs
regarding the suspicious practices of one of their company’s business partners).14
14 The GTLI Defendants advance the argument that the “generic group pleading”
20. 20
For all of the foregoing reasons, the GTLI Individual Defendants’ motion dismiss
the FTC Act claims against them is DENIED.15
Finally, the GTLI Defendants contend the FTC has failed to sufficiently allege
claims against them for violations of the TSR, merely pointing the Court to their prior
briefing on the issue. GTLI’s Mem. at 16. With respect to the GTLI Defendants’
argument that the amended complaint fails to sufficiently allege a violation of the TSR
based on a theory of substantial assistance, the Court has already rejected this
argument, and the GTLI Defendants have provided no reason for it to revisit rulings that
are now the law of the case. See Order at 8-9 (“[T]he amended complaint contains
sufficient factual allegations to support a claim that the nature of these defendants’
assistance was more than mere casual or incidental dealing with a seller or telemarketer
relating all of the defendants in this action is of little use to the Court in assessing the
sufficiency of the claims against them. See, e.g., GTLI’s Mem. at 7 (“Here, the FTC
claims that each of fifteen defendants collectively: (i) solicited consumers seeking major
medical health insurance; and (ii) falsely represented plan discounts, participating
providers and the plan’s cancellation and refund policy. These allegations, which do not
specify which of the fifteen defendants made which misrepresentations, fail to satisfy
either Rule 8 or Rule 9(b).” (internal citations omitted)). Notably, the court in
Innovative Marketing rejected nearly the identical argument. See 645 F. Supp. 2d at
388 n.3 (“[The individual defendant] contends that in weighing the sufficiency of the
Complaint, this Court should disregard the allegations relating to the Defendants
collectively. However, [his] argument is misguided. The allegations pertaining to the
Defendants as a whole provide the context that allows this Court to understand and
weigh the significance of the claims specifically relating to [the individual defendant.]”).
15 Contrary to their contention that the amended complaint names Holson,
Burman, and Taube in both their official and individual capacities, GTLI’s Mem. at 10
n.4, the amended complaint simply alleges that these defendants are jointly and
severally liable for the acts of the Corporate Defendants, Am. Compl. ¶ 21. Accordingly,
the GTLI Defendants’ application to strike the designation “individually” from the
amended complaint is also denied.
21. 21
that is unrelated to the violation of the Rule.” (internal quotation marks and citation
omitted)). As for their contention that the amended complaint fails to sufficiently allege
a direct violation of the TSR because none of the GTLI Defendants are “sellers” or
“telemarketers” within the meaning of the rule, GTLI’s Reply at 8, the Court finds this
contention unpersuasive. Though it is true, as the GTLI Defendants contend, that only
“sellers” or “telemarketers” can be held liable for direct TSR violations, 16 C.F.R. §
310.3(a),16 there is no question that NBC and NBS—two of the Corporate Defendants—
constitute sellers and telemarketers, Am. Compl. ¶¶ 24, 25, and that under the FTC’s
common enterprise theory this status may be imputed to the GTLI Corporate
Defendants, CHBA, and NAFA, all of whose actions the GTLI Individual Defendants
may be held jointly and severally liable for. See, e.g., Fed. Trade Comm’n v. Wash. Data
Res., — F. Supp. 2d. —, No. 09 Civ. 2309–T–23–TBM, 2012 WL 1415323, at *20 (M.D.
Fla. Apr. 23, 2012) (“[A]n act by one entity constitutes an act by each entity comprising
the ‘common enterprise.’”).
3. The GTLI Defendants’ Motion for a More Definite Statement is
Denied
The GTLI Defendants argue in the alternative that if the Court declines to dismiss
the claims against them, it should require the FTC to provide a more definite statement
16 The Telemarketing Act defines “telemarketing” as a “plan, program, or
campaign which is conducted to induce purchases of goods or services . . . by use of one
or more telephones and which involves more than one interstate telephone call.” 15
U.S.C. § 6106(4). Telemarketer “means any person who, in connection with
telemarketing, initiates or receives telephone calls to or from a customer or donor.” 16
C.F.R. § 310.2(cc). Seller “means any person who, in connection with a telemarketing
transaction, provides, offers to provide, or arranges for others to provide goods or
services to the customer in exchange for consideration.” Id. § 310.2(aa).
22. 22
pursuant to Fed. R. Civ. P. 12(e). Specifically, the GTLI Defendants maintain that “[t]o
sustain each of the claims it asserts against the GTL Defendants, the FTC must definitely
state the specific FTC Act or TSR violation and role of each GTL Defendant with respect
thereto.” GTLI’s Mem. at 17. Yet the Court has no basis on which to require any more
definite statement by the FTC. The amended complaint is hardly incomprehensible or
unintelligible, and its narrative with respect to each of the GTLI Defendants’ roles in the
common enterprise is sufficient to put them on notice of the claims against them.17 A
motion for a more definite statement is not meant to serve as a substitute for discovery.
See, e.g., Joya, 2008 WL 4667987, at *1 (“‘The preferred course is to encourage the use
of discovery procedures to apprise the parties of the factual basis of the claims made in
the pleadings.’” (quoting In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig.,
No. 00 Civ. 1898 (SAS), MDL 1358, 2005 WL 1500893, at *2 (S.D.N.Y. June 24,
2005))). Accordingly, “[t]he appropriate means for attending to the business of
particularizing and specifying issues raised by [the amended complaint] are the
procedures of pretrial discovery set forth in Rules 26-37 of the Federal Rules of Civil
Procedure, to which the parties are hereby commended.” 777388 Ontario Ltd. v.
Lencore Acoustics Corp., 105 F. Supp. 2d 56, 65-66 (E.D.N.Y. 2000). The GTLI
Defendant’s motion for a more definite statement is thus DENIED.
17 Neither of the cases upon which the GTLI Defendants rely involves a common
enterprise among the defendants. See Caraveo v. Nielsen Media Res., Inc., No. 01 Civ.
9609 (LBS), 2002 WL 530993, at *2-4 (S.D.N.Y. Apr. 8, 2002) (Rule 12(e) motion
granted where pro se plaintiff alleged 30 causes of action against 25 defendants and
failed to identify the specific defendants against whom he was asserting each of his
causes of action); Bower v. Weisman, 639 F. Supp. 532, 538 (S.D.N.Y. 1986) (Rule 12(e)
motion granted where defendant could not determine whether claims were brought
against him in his individual capacity or against the two business he owned).
23. 23
III. CONCLUSION
For all of the foregoing reasons, Tow, Schwartz, and the GTLI Defendants’
motions to dismiss pursuant to Rule 12(b)(6) and Rule 9(b) are DENIED. The
GTLI Defendants’ motion for a more definite statement pursuant to Rule 12(e) is
also DENIED.
SO ORDERED.
Dated: Brooklyn, New York
May 21, 2012
/s/
I. Leo Glasser
Senior United States District Judge